Preamble

The House met at Eleven o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

PETITIONS

Education

Mr. Norman St. John-Stevas: Mr. Speaker, it is a great joy to be back temporarily in my old place on the Back Benches this morning.
I beg leave to present to the House a petition on the subject of freedom in education and to amend the Education Bill which is now in Committee. The petition has been signed in 10 weeks by 561,110 people from places which include Lancashire, Wales, Surrey, Sutton, Buckingham, Bexley, Kingston, Essex, Chelmsford, Kent, Tonbridge, Coventry, Birmingham, Worcester, Tyneside, Reading, Yorkshire, Hull, Cumbria, Croydon, Plymouth, Burton-on-Trent, Knutsford, London, Bristol and Dorset—an ecumenical selection, Mr. Speaker.
The petition also has the signatures of various distinguished individuals. It is a non-party petition supported by Members of all parties and of none.
The petition is in no way against comprehensive schools, but it seeks to end the imposition of those schools everywhere without regard to local conditions, educational considerations, parental wishes or financial resources. It seeks to preserve the rights of parents, children and teachers to a variety of schools and freedom of education.
The petition states:
Wherefore your Petitioners pray that the House of Commons do amend the Education

Bill at present before the House, so as to increase the opportunities of parents to choose from within the maintained sector comprehensive schools if they so desire, but also other types of school if they so prefer; to enable a variety of school to be provided to meet the different abilities and aptitudes of children in accordance with section 76 of the 1944 Education Act; to enable local education authorities to continue to exercise their present powers and discretion on the best provision of schools for their areas; to preserve the freedom of local authorities and parents to choose different types of school within the maintained sector; and to concentrate resources not on changing the character of schools of proven academic worth, but on improving and maintaining standards of education in maintained schools of all types.
And your Petitioners, as in duty bound, will ever pray.

To lie upon the Table.

Widows (Taxation)

Mr. Ivor Clemitson: Mr. Speaker, a constituent of mine, Mrs. Edith Foster, was sadly widowed last year. Since then she has become very actively concerned with the problems of other widows in the Luton area and has collected 4,210 signatures to the petition which I now have the honour to present.
The petition draws attention to the harsh way in which the taxation system bears upon widows, and it states:
The humble Petitioners of Luton and district, on behalf of the widows of the United Kingdom of Great Britain and Northern Ireland, sheweth that they, the widows, are caused great hardship by the way in which their pensions and earnings are taxed.
Wherefore your Petitioners pray that you will prevail upon the Chancellor of the Exchequer to provide tax relief in the form of a revised group of code numbers for widows so that they are not taxed as single people and taking into account the special difficulties peculiar to them.
And your Petitioners, as in duty bound, will ever pray.

To lie upon the Table.

Orders of the Day — CONGENITAL DISABILITIES (CIVIL LIABILITY) BILL

Not amended (in the Standing Committee), considered.

Clause 2

LIABILITY OF WOMAN DRIVING WHEN PREGNANT

11.9 a.m.

The Solicitor-General (Mr. Peter Archer): I beg to move Amendment No. 1, in page 2, line 37, leave out 'is' and insert
knows (or ought reasonably to know) herself to be'.
I refer to two matters at the outset, Mr. Speaker, which do not strictly fall within the ambit of the amendment. First, I understand that this morning the House will not have the assistance of my hon. Friend the Member for Birmingham, Northfield (Mr. Carter), to whose initiative we owe the Bill. That is a matter of regret to all of us, but the reason is one which gives us a great deal of pleasure. I offer my congratulations to my hon. Friend on his well-deserved promotion.
Secondly, may I be permitted to say that I shall not be able to stay for the whole of the debate? I am indebted to my hon. Friend the Parliamentary Secretary to the Law Officers' Department—

Sir John Langford-Holt: On a point of order, Mr. Deputy Speaker. Is the Solicitor-General speaking to Amendment No. 1 or to the first motion on the Order Paper?

The Solicitor-General: I am hoping that I am speaking to Amendment No. 1.

Mr. Deputy Speaker (Mr. Oscar Murton): I think that the Solicitor-General is about to deploy his argument. It is Amendment No. 1 which is being taken.

The Solicitor-General: I am most grateful, Mr. Deputy Speaker. That was my understanding of what I was talking about. I concede that the remarks that I was addressing to you did not fall strictly within the ambit of the amendment.
I repeat that I offer my congratulations to my hon. Friend the Member for Northfield, to whom we are indebted for the Bill, on his promotion, although we regret that he will not be participating in our debates this morning. I also said that I shall not be able to stay for the whole of the debate. I am indebted to my hon. Friend the Parliamentary Secretary to the Law Officers' Department, who will be taking my place at the Dispatch Box. I hope that it goes without saying that my absence is not intended as a discourtesy to the House, nor as an indication of any diminution of my interest in the Bill. If it is in order for me to say so, I wish the Bill well.
I shall now try to bring my remarks within order. For those who participated in earlier stages there is no need for me to provide a long explanation of the amendment, which arises from a discussion that took place in Committee. However, there may be some hon. Members now in the Chamber who were not present in Committee who might welcome a brief explanation. The Bill provides that if a child is born disabled as a result of a wrongful act before birth, it will have a cause of action against the wrongdoer. That is not to apply where the wrongdoer is the mother. The Bill does not confer a cause of action against the mother. That was the recommendation of the Law Commission. It was fully debated at previous stages in our considerations and is not in issue on this amendment.
11.15 a.m.
But the Law Commission thought that there should be a exception to the rule where the wrongful act was committed by the mother when driving a motor vehicle while she was pregnant. That is the effect of Clause 2. Again, that exception was recommended by the Law Commission. The reasons have been very fully considered by the House and, as I understand it, the policy contained in the clause is not in issue.
However, an argument arose out of what was largely a drafting amendment that was introduced in the course of our discussions in Committee by the hon. Member for Eastbourne (Mr. Gow). The argument is not about the nature of the duty which arises. The duty is to drive and behave with reasonable skill and care according to the circumstances. That


does not mean that a woman must necessarily drive more slowly, more carefully, or in some other way because she is pregnant.
The House may have noticed that I added the words "and behave" to the word "drive". It was pointed out during our discussions in Committee that, for example, it might not be sensible for a pregnant woman to wear a seat belt, whereas it might be sensible for her to wear one if she is not pregnant. The issue is to whom the duty is owed, who will have a cause of action against her, and through her, normally against the insurance company, if there is injury because she falls below the standard of driving and behaviour that is required. The normal common law rule is that the duty is owed to those whom she ought reasonably to have had in contemplation as likely to be affected by her driving, that is to say, anyone she knows to be, or should be aware of as being, if I may depart from the formula in all the textbooks, within striking distance. That was the intention in drafting the clause —namely, to add the unborn child to the classes to whom potentially a duty should be owed if she knew or ought to have known of their presence.
In other words, the opening words of the clause were intended to define the situation in which the unborn child might be added to those to whom the duty is owed. It is not who is picked for the team but whether there is to be a match.
But in Committee the hon. Member for Eastbourne expressed some concern in case the opening words might be construed either by the courts or anyone else who had to operate them as governing the test of whether the duty was owed to a particular unborn child, in case it might be held to follow that if the woman was pregnant, there was a duty to that unborn child, whether or not she knew or ought to have known of its presence.
I considered, and I still consider, that it would be unlikely that a court would place that construction on the clause as drafted. However, if the House has that anxiety, my hon. Friend the Member for Northfield and I feel that the formula should be available to allay anxiety. If

there is a doubt, and if we can resolve it without any grave disadvantage, perhaps it is better to resolve it. The House may prefer to adopt that course. That is the purpose of the formula in the amendment.

Mr. Ian Percival: I echo the opening words of the Solicitor-General in congratulating the promoter of the Bill on his promotion to the Front Bench. I wish him well. I also echo the hon. and learned Gentleman's words in saying that I, too, will have to leave before the end of this measure. Like the hon. and learned Gentleman, my absence indicates no lack of interest in the Bill. It is a measure which is of concern to everybody, as it raises questions of emotion and law.
Like the hon. and learned Gentleman I have a twin interest in this measure. I want to see something done to help those whom it is desired to help in the Bill, but as a lawyer I am concerned to see that what it is desired to do is done without further problems being created. I have a great interest in the Bill for both those reasons.
I congratulate my hon. Friend the Member for Eastbourne (Mr. Gow) for rising this matter in Committee, as well as a number of other important matters. He provided the means of discussing them. When one reads the Standing Committee reports, it is clear that my hon. Friend played a most prominent and useful part in the proceedings in Committee. I congratulate him on raising this point and on the persuasive way in which he put the argument upon it. Happily, he was sufficiently persuasive to persuade the Solicitor-General that this course should be taken. If I may say so, I congratulate the hon. and learned Gentleman on accepting the argument.
When there is a doubt and we have the means to put it right, let us do so. Regrettably, this is not done as often as it should be. Too often we leave the matter with scope for argument when there is no need to do so. Therefore, I am glad that the matter has been resolved in this way and I support what is being done.
I wish to make one or two observations first on this clause generally since the Solicitor-General said that the policy of its provisions was not in


issue. It is not in issue this morning, but I do not want it to be thought that we have departed from the view which I expressed on Second Reading and which was echoed in Committee by my hon. Friend the Member for Eastbourne. We think that it would have been better to exempt the mother altogether. However, I shall not rehearse arguments which have been put at previous stages. I merely wanted to make it clear that, although this matter is not in issue today we have been concerned about these provisions and we hope that they will be fully debated in another place.
On Second Reading the promoters of the Bill and others expressed the desire to clarify and improve the law. We are all in agreement on that score, and, indeed, that is what we always want to do. However, we must not give the impression that following the enactment of the Bill the whole matter will be crystal clear or, indeed, that the Bill will help a large number of people.
Anybody who doubts what we said at earlier stages about the danger of raising new points fit for litigation has only to read the discussions in Standing Committee. One difficulty after another was raised and fully discussed. The Solicitor-General in replying to points often used the phrase "I do not know the answer to that problem", and he was right to admit it. New questions will be raised on the Bill, and they can be decided only after litigation. That is a pity, and it is some-think we should seek to avoid, as I am sure the Solicitor-General agrees. What we are doing will raise new doubts and difficulties. One hopes that it will be possible in another place for those with expertise in these matters to assist us in this respect.
I am concerned about this subject for two reasons. First, I believe that it is important for the public to realise that this is not a panacea for all ills. We hope that it will help, but nobody should place too high hopes on the provision. The second area for concern is that those wishing to bring an action under these provisions will go to solicitors who will say "I do not know what the provisions mean. We must go to counsel." They then go to counsel, who also says "I do not know what it means. Let us

go to court." When the matter is taken to court, the judge will say "This is a difficult problem but I think that the answer is as follows, etc."—and, once again, people will say that the law is an ass and will blame the situation on the lawyers.

Sir J. Langford-Holt: They will blame us.

Mr. Percival: My hon. Friend says that they will blame us, but that is not true. They will blame the lawyers. It is important that the law should command the maximum amount of respect. A situation such as that which I have just described tends to bring the law into disrespect.
Let us look the problem in the face. We must accept that there are difficulties involved in considering this matter. We must accept that it is for Parliament to seek to avoid difficulties being created by legislation. This reinforces the desirability, where possible, of removing any doubt and difficulty. It brings me back to the point of the amendment. It may be said that the amendment makes only a small difference, but it certainly removes a doubt. The amendment is wholly desirable and I fully support it.

Mr. Leo Abse: We all share the tribute paid by the hon. and learned Member for Southport (Mr. Percival) to the hon. Member for Eastbourne (Mr. Gow) for having allowed us to ventilate so many issues in Committee. I hope that it will be understood in the other place that the House of Commons has engaged itself closely with the minutiae of the Bill. We have not dealt with these provisions in a perfunctory manner. Although we accept that our views may be reviewed in another place, we hope that there will be no confrontations which will lead to any frustration of hopes—hopes which, as the hon. and learned Member for Southport stressed, must not be too high. The Bill will give limited assistance to parents with children who have suffered injury as a consequence of somebody's negligence.
In supporting the amendment the hon. and learned Member for Southport rightly stressed the necessity for this House, so far as possible within its collective ingenuity, to try to anticipate every possible situation that can arise so that litigation may be avoided. We do not possess


the vision of prophets and seers, and those of us who have been involved in the promotion and passing of legislation know that the unexpected and unanticipated often arises and that the courts must be left to make decisions.
What concerns me is that by means of the amendment we may not diminish the possibility of new problems but may create new ones. I am aware of the stamina of the hon. and learned Member for Southport, with whom I have been engaged on so many other parliamentary occasions, but I should like him to direct his mind to the fact that the placatory gesture offered to Back Benchers by the Solicitor-General, although well intentioned, may lead to unfortunate results.
On every driver there exists a duty to take care—a duty that is owed to passengers and pedestrians. This case involves a driver—we are here dealing with a woman driver—as a result of whose carelessness somebody suffers the consequences. A duty is owed to the elderly woman who cannot sprint across the road, or to the child who may unexpectedly move out from the pavement and who would have been avoided by the careful driver, but not by a woman displaying lack of care. A duty is owed to such people.
On a dark night a woman is expected to drive in a sufficiently careful manner so that if she knocks down a black man in a black mackintosh she cannot claim exemption from a claim for damages because she says that she did not know that the black man was there. At the most, if a reasonably careful driver could have avoided the accident with that coloured man, she may plead that he contributed to the accident because he was wearing a black mac, although I doubt that a court would find that enough to mitigate the damages.
In all those cases a duty of care is well established even though the existence of the elderly woman, of the precipitate child, of the coloured man, was not known to the driver. Indeed, as hon. and learned Members will know, many jurists insist in the most reputable text books, which I studied 100 years ago when we were all studying our tort, insisted then, and still insist, that apart from a particular duty of care there is a general duty of care.
11.30 a.m.
I do not want to enter into the theoretical arguments about the particular or the general. Why, at this stage, should we introduce an amendment, however well intentioned, which fails to give to the unborn, unknown child the same protection as we are ready to give to the unknown precipitate born child, the unknown laggard elderly woman, or my black man on a dark night? I am not concerned about the lack of logic, because that is not so important. Justice is important. Where is the justice in giving this let-out to the woman driver's insurance company when such a let-out would not be given in all the circumstances and occurrences that I have categorised?
I would genuinely welcome further consideration to be given to another question. I am troubled that if we insert the suggestion that because the woman did not know that she was pregnant a claim can be allowed, we shall go further than anticipated.

The Solicitor-General: Perhaps I can help at least to discover what, if anything, is at issue between the two sides of the argument. My hon. Friend will agree that normally a duty of care in tort is owed only to those one knows are likely to be affected or those within the category of people whom one ought to have within contemplation as being likely to be affected.

Mr. Abse: I make no pretensions that my reply to my hon. and learned Friend has suddenly sprung to mind. I have refreshed my memory by looking at textbooks again, which I doubt my hon. and learned Friend has been able to do in the flurry and activity of office. The basic argument is whether there is a general duty of care or whether there is a particular duty of care. I have stressed that if there is a general duty of care, we are making a special exemption in this case. But even if there is only, as some jurists say, a particular duty of care, that still imposes a duty on the driver in this case to be careful.
As I have tried to show, we are making a particular exemption of someone because the situation is unexpected and because the woman, in this case, may not have known that she was pregnant. She may not have known that a child was


going to dart across the road, or that an elderly woman would take longer than normal to cross the road, but in those cases the law requires that there is a duty of care. One must drive taking all such circumstances into account. I am pleased to see that my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) is in the Chamber, because we need to probe this issue. The desire of the hon. Member for Eastbourne seemed to have more logic and justice when he expressed it in Committee than it appears to have now, and I am coming to the conclusion that we are unwittingly creating an injustice—and more than that.
My next point will be of particular concern to the hon. and learned Member for Southport. In meetings of the all-party group concerned with disabilities it was forcefully suggested that the question of contributory negligence on the part of a mother would mean that she would be under surveillance for her conduct for a period of nine months. That was because something which the mother may have done in those nine months may, it could be pleaded, have contributed to the damage of her child, whereas in most cases if contributory negligence is at issue, it arises from a particular piece of behaviour at a particular moment. That would be usual in a road accident.
The organisations of the disabled, through their spokesmen, have correctly pointed out that it seems as though there is a possibility of surveillance over a very long period. That argument is right, but it is inescapable if justice is to be done to the defendants as well as to the plaintiff.
Let the House pause for a moment and consider what could occur. In a case where a child was born maimed or disabled, surely, the question of whether the driver knew, or ought reasonably to have known, that she was pregnant should be probed. But that could be probed only in a most prurient manner.
I find the whole question of whether the woman knew or ought reasonably to have known that she was pregnant troublesome. If a woman made a claim, the court would want to know—if attention was attracted to the amendment—if she could prove that she did not or could not know that she was pregnant. Judges,

to use an old phrase, do not want to go beneath the sheets to find out whether the woman has or has not had sexual intercourse at a time which would make it possible for her to know that she was pregnant.
But how else could the mother be tested in court? Although it might be very irksome for a defending counsel, it would be his duty to start questioning the woman about sexual intercourse. It could cause all sorts of embarrassment. A woman who was separated from her husband might have a whole range of inquiries directed to her.
We are not concerned with the woman's behaviour. We are deeply concerned with a child who may be born disabled. Therefore, although I believe the amendment to be well intentioned, I am worried about it, as a solicitor. I am sure that many barristers in the House will also agree that they would not like to have to pursue the line of questioning I have suggested. I accept that, as the hon. and learned Member for Southport has stressed, the object of the amendment is to provide some necessary clarity, but in a few words it introduces many problems, which may include an unhealthy invasion of privacy in open court dealing with a case of civil liability.
I am not being didactic, but these matters were not raised in Committee. I may be wrong in the main line of my argument. But I should be happier if there were a pause to consider the debate. Then, if I am wrong and the balance of argument is against me, the matter can be put right in the other place. I am sure that the hon. and learned Member for Southport and the hon. Member for Eastbourne realise that I take this line because I am deeply troubled.

Mr. Percival: I propose to leave it to my hon. Friend the Member for Eastbourne to deal with the detail, but I intervene to thank the hon. Gentleman for his gracious remarks about me, which I appreciate, and to respond to his invitation to this extent. I think the reason why all the people to whom the hon. Gentleman referred, including the black gentleman in the dark overcoat, are included is that they all fall within the category of people one knows may be on the road. One must take care in


respect of them, which is what the amendment is directed at as well. In practice, that is how the courts approach the matter, even if some textbook writers have said that the approach should be wider.
I agree that the hon. Gentleman's second point is very important. I referred to it on Second Reading. I think that the history of the mother during pregnancy may well be laid open by the Bill, because even when one is proceeding not against the mother but against someone else, it must be open to that other person to say "My conduct may have had something to do with it, but the mother's conduct also had something to do with it." That is not excluded by the Bill.
I referred to that on Second Reading as one of the unfortunate consequences which would flow from the Bill and which could not be avoided. Although I follow the hon. Gentleman's argument, and shall examine it carefully, I do not think that the amendment adds anything to that consequence. I agree with the hon. Gentleman that all the matters he mentioned may be the subject of investigation in proceedings, but I do not think that the liability to that is enlarged by the amendment.

Mr. Abse: I agree that the hon. and learned Gentleman put into issue the question of the history. It is inescapable, but as it will be applying largely, though not exclusively, in road accident cases, it is here that what the hon. and learned Gentleman feared is most likely to arise.
Subject to what may be said by hon. and learned Members in particular, I ask the hon. Member for Eastbourne whether it would not be wiser for us not to press my hon. and learned Friend the Solicitor-General to continue with this matter until we have had a pause and considered whether it should be reviewed in another place.

11.45 a.m.

Mr. John Hannam: Like the hon. Member for Pontypool (Mr. Abse), I am not entirely happy about the amendment.
I speak for the first time in the debate on this measure, and I speak as a layman. I do not profess to be able to enter into the detailed legal arguments, but I am

secretary of the all-party Disablement Group, which has been concerned about the implications of the Bill. Some of my colleagues in the group and I fear that the amendment will reduce the chances of disabled children claiming compensation.
As we see it, the clause defines an area within which compensation for pre-natal injury in a car accident can be claimed from insurance companies. It is a direct approach for cash in real terms. The present wording allows a child to claim if it can be shown that it had been conceived before the injury. The amendment seems to reduce the chances of such a claim, because the mother will have to show that she knew or should reasonably have known that she was having a baby.
One can foresee the problems and complexities. When an accident occurs, the injured mother will have to remember to state clearly to the constable there, or to other witnesses, that she thinks she is pregnant. She must give some indication which can be used in a court action that she thought she was pregnant. Otherwise, at a later stage there will be all sorts of inquiries and investigations into whether she knew she was pregnant. Only recently there was a case in the other place concerning a mother who did not know that she was pregnant until after five months, and even then thought that she was still a virgin.
Therefore, I ask the Solicitor-General in what circumstances the amendment removes the right of a child to sue. I believe that it will deprive certain children of that right. If the mother has to show after an accident that she should have known she was pregnant, will she have to give evidence in court that she forgot to take the pill, for example? I hope that I can be reassured before we pass the amendment that it does not represent a further weakening of the right of a child to claim damages.
Although the original wording was obviously open to legal doubt and interpretation, it presented to a layman like me a much clearer definition of the right of a child to claim. I add my voice to that of the hon. Member for Ponty-pool in calling for a re-examination of the wording of the clause and the amendment.

Mr. David Weitzman: I regret that I did not have the privilege of serving on the Standing Committee that considered this Bill, although I am particularly interested in the subject matter. I had the honour of assisting my hon. Friend the Member for Carlisle (Mr. Lewis) when he introduced a Private Member's Bill aimed at achieving the same object. The hon. Member for Exeter (Mr. Hannam) was one of the sponsors of that Bill.
I regret the Solicitor-General's decision to move this amendment. The hon. and learned Member for Southport (Mr. Percival), to whose words I listened with interest, is a lawyer, as I am and as is my hon. Friend the Member for Pontypool (Mr. Abse).
My hon. Friend the Member for Pontypool adduced a very cogent case as to why these words should not be included. The hon. and learned Member for Southport said that words are inserted in a Bill to remove doubt. Words are inserted on many occasions also which may cause doubt and result in litigation. Unless the inclusion of these words is absolutely essential for the removal of doubt, I see no reason for their insertion.
As my hon. Friend the Member for Pontypool rightly said, the duty of care in negligence is clear. It is a duty owed for instance, to a child running across the road and to a disabled person, amongst others. The court asks "You have injured the plaintiff. What is your duty of care towards him?" If that duty has been breached and there is negligence, the defendant is liable.
I take the clear view as a lawyer that the words used in Clause 4 are sufficient for the purpose and that it is entirely unnecessary to insert these words. Of course, I shall not oppose the amendment, but I hope that when the Bill reaches another place further consideration will be given to this point and that it will be decided that these words are unnecessary.

Sir J. Langford-Holt: May I as a layman ask whether it is not one of the principles of English law in deciding guilt that it must be established that a person knew what he was doing? The word "knowingly" is often inserted into enactments under which the determination of guilt arises.

Mr. Weitzman: I my view, the word "knowingly" does not enter into this matter. The duty of care is there and the words in Clause 4 are sufficient to cover all cases.

Mr. Ian Gow: The House should be very grateful to the hon. Member for Pontypool (Mr. Abse) for the very clear way in which he spelt out some of the difficulties which he visualised would occur if the amendment were to be made. When I was listening to the hon. Gentleman I thought that he was making as powerful case for the withdrawal of the whole of Clause 2 as he was for the with drawal of the amendment.
The principle enshrined in Clause 1 is that damage done to a child before birth should be actionable by that child in all circumstances save one. That one exception is where the damage which the unborn child suffers is attributable to the mother. Then that one crucial key exception is watered down by Clause 2, for Clause 2 provides that, though a mother, knowing that she is pregnant, goes, for example, on the big dipper at Battersea Fun Fair, though she goes galloping on her horse, though she takes drugs which she knows may be dangerous to the child, though in any one of those three cases there would be no redress for the child, where a mother is careless as a result of driving and as a result her unborn child suffers injury, in that one case the mother will be liable for the disability suffered by the child.
I believe that the amendment would make an improvement to the Bill. I must answer the question posed by my hon. Friend the Member for Exeter (Mr. Hannam). He asks whether the amendment would in any way erode the right of the child to compensation. The answer to that question, in my opinion, is that it will, because I believe that there is a difference in the duty of care resting upon a pregnant mother to take care of the foetus within her, depending upon one key test: does the mother know that she is pregnant or ought she reasonably to know that she is pregnant? There is a key difference between the duty resting upon a mother according to whether she knows or does not know that she is pregnant, according to whether she ought reasonably to know that she is pregnant, and whether it is unreasonable to ask her to say that she is pregnant.
I shall seek to illustrate that point. There are, sadly, no female Members present, but even those of us who are fathers acknowledge that the risk of going in a dodgem car for a woman when she is pregnant is one that many mothers would not take. We know that mothers who are pregnant do not ride a horse, certainly not in the latter months of pregnancy and sometimes not in the very early months or early weeks of pregnancy, because it is a danger to the child.

Mr. Weitzman: At common law doubts have been expressed that it may well be that a woman who is driving and who is negligent but who did not know that she was pregnant is liable. By inserting these words Parliament will shut out that possibility of liability at common law.

Mr. Gow: Absolutely. Most women when they know that they are pregnant drive rather more carefully than when they are not pregnant or when they believe that they are not pregnant. The difference between the hon. and learned Member for Hackney North and Stoke Newington (Mr. Weitzman) and the hon. Member for Pontypool and myself is that I believe that a mother who knows that she is pregnant or who ought to know that she is pregnant is under a greater duty to take care than one who is not.

Mr. Weitzman: The hon. Gentleman has shaded the point I put to him. If a woman who does not know that she is pregnant is negligent and her unborn child suffers damage, it may well be that at common law the child has a cause of action. Some doubt has been cast upon that proposition, but that may well be the position at common law. The hon. Gentleman argues that the amendment would cut out that right at common law and would secure that a woman who did not know shall not be liable although she may well be liable now at common law. Does the hon. Gentleman really desire to shut out the possibility of redress at common law?

Mr. Gow: If I understand Clause 4(5) correctly, and the Solicitor-General will correct me if I am wrong, the Bill replaces the common law in respect of future births but not in respect of births

which took place before the passing of the Bill. To that extent the hon. and learned Gentleman is right. If the Bill becomes law it will replace the common law in respect of future births. Though there may be a right in common law today to damages against a mother who does not know, that right would be removed by the amendment.

12 noon.

Mr. Abse: Is not the hon. Gentleman making it clear that the Solicitor-General should not proceed with the amendment if the aim of the House is to assist children who are suffering from a disability? The hon. Gentleman has been honest and frank in admitting that an existing possible right for a disabled child will be taken away by the amendment. Surely the Solicitor-General, in the light of the views which have been expressed, cannot go further with the amendment, because it is a matter which is giving cause for concern.

Mr. Gow: The hon. Member for Pontypool will recognise that it is not only in respect of driving that child plaintiffs will be worse off. It may be the case in common law today that a child born disabled will have a right of action against its mother for disabilities occurring other than through that limited sphere of injury while the mother is driving a motor car. Those rights, too, are removed if the Bill becomes law as it is drafted by the promoter of the Bill himself.
We have faced up directly to this issue and the only issue between the two sides of the House is whether a mother who knows or ought to know that she is pregnant owes a greater duty of care than a mother who does not know, or ought not reasonably to know. I answer that question very clearly by saying that a mother who knows she is pregnant is under a greater duty of care. I believe that the amendment improves the Bill and I hope that the House will agree to it.

Sir J. Langford-Holt: I wish to apologise to the Solicitor-General for my intervention earlier. I was wondering what had happened to the motion to be moved by the hon. Member for Ilford, North (Mrs. Miller). I did not appreciate that that motion arose only at the time of Third Reading.
I should also state that, like my hon. Friend the Member for Exeter (Mr. Hannam), I am speaking entirely as a layman. One has listened with great interest to the exchanges between hon. and learned Gentlemen on both sides of the House. I am not quite sure, with all due respect to them, that I am any clearer now than I was at the beginning. I came to the House quite clear as to what I thought about the amendment, but I am bound to say that at this moment I am somewhat bewildered, especially after my intervention to the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman). Although he answered with great clarity, he threw all my notions as to British law into the melting pot.
There is one question which I should like the Solicitor-General to answer. The clause says:
A woman driving a motor vehicle when she is pregnant …".
Exactly what is meant by the word "driving"? We have had this problem in other connections, mostly to do with breathalysers and drunken driving. Exactly at what point is a person driving a car, and in control, or in charge of the car, or has the key, and exactly at what point does responsibility begin?
To me as a layman it appears that responsibility is involved, because I want to know precisely what is meant by the word "driving". I apologise for asking what may be a stupid question which may require a simple answer from the Solicitor-General but I take a contrary view to my hon. and learned Friend the Member for Southport (Mr. Percival). I believe that people always blame all of us in this House—not just him and his learned Friends—for the excess of legislation and the poor quality of legislation which sometimes comes out of this House.

The Solicitor-General: If I may have leave to speak again, let me say in response to the hon. Member for Shrewsbury (Sir J. Langford-Holt) that I do not think his question admits of a simple answer. I shall not weary the House by embarking upon a complicated answer at this stage, although the question is one to which we should perhaps give a little care.
As I understand it, the word "driving" in this clause means what it means in the Road Traffic Acts and in the various decisions under those Acts. It is quite true, as the hon. and learned Member for Southport (Mr. Percival) said, that one of the considerations in the minds of the Law Commissioners when they recommended the exception given effect in this clause was that a lady who is driving will probably be covered by insurance. This provision is found in the Road Traffic Acts and it is the interpretation given to the word in that part of the legislation which, as I understand it would have effect in this clause.

Sir J. Langford-Holt: The Solicitor General talked about insurance which refers to an act of driving. By definition, injury to a foetus by one particular act of driving may not become immediately apparent. It may be that the mother concerned may be driving different cars on different occasions and with different insurance companies. Exactly how is one to identify which particular act of driving is the one which becomes actionable?

The Solicitor-General: That problem is one which runs through a great deal of our legal system. The problem of causation and evidencing a specific causation certainly runs through industrial injury legislation and industrial injury common law. I am not sure how we can eliminate those difficulties in legislation. If the hon. Gentleman is making the point that these difficulties, which we find elsewhere in our law, are to some extent being introduced into this part of the law, in Clause 2, I accept his view. I think they are, but on other occasions the courts cope with them, not always easily, because sometimes they are a headache for the lawyers and the judges. However, the courts cope.
I would not myself regard it as a very powerful argument against the clause that these difficulties, which exist else where, will be applied to this area. I hope that the hon. Gentleman will forgive me if I do not embark on a more elaborate exposition of what in various contexts has been held to be driving and some of the evidential difficulties about attributing an event to a particular cause where it might possibly have been attributable to a series of causes.
The argument adduced by my hon. Friend the Member for Pontypool (Mr.


Abse) falls into two categories—juris-prudential and pragmatic. I take up the point of my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) that it is possible that the Bill will remove certain rights which are already afforded by the common law. One of our difficulties, and one of the difficulties which confronted the Law Commission, is that the rights which the common law confers are in a penumbra of uncertainty.

Mr. Weitzman: Why does my hon. and learned Friend say that Clause 2, without the amendment, would remove common law rights?

The Solicitor-General: I did not say that. I said that the common law, as it exists, is an area of uncertainty. As the hon. Member for Eastbourne (Mr. Gow) said, in relation to future births the Bill would replace the common law and therefore would replace uncertainty with, we hope, certainty. In the process, it might remove certain rights which are given by the common law.

Mr. Abse: Will my hon. and learned Friend say in what way the Bill removes an existing right? It is clear from Clause 4(5) that it replaces existing law with the object of totally clarifying the position. It replaces doubt by certainty, but it does not take anything away.

The Solicitor-General: It replaces doubt by relative certainty. That is our hope. I support the Bill as vigorously as my hon. Friend does. I am not trying to argue against it.
My hon. Friend has asked for an example. At present, it is possible that a child who is born injured in consequence of a pre-natal event will, in certain circumstances, have a cause of action against the mother other than when she is driving. One effect of the Bill will be to remove that cause of action. If we replace doubt by relative certainty, that is necessarily one of the consequences of what we do.

Mr. Gow: Is it not the case that if the Bill becomes law a child who may at this moment have a right of action under common law against the mother—for example, the mother may have negligently taken drugs or had gone riding during pregnancy—will no longer have that right?

The Solicitor-General: That is exactly what I was trying to say. We seem to have spent a great deal of time on what I intended to be only a preliminary remark. It is true that it is possible that the Bill will remove certain rights which might have been held to exist at common law. The example just given by the hon. Member for Eastbourne is an obvious one.
May we consider the policy of Clause 2? I understand that the policy may be in dispute, as the hon. and learned Member for Southport said, but it is not in dispute on this amendment. The policy which it was intended to implement was to say, first, "Let us consider the duty of care." We are considering, not the standard of care, but the people to whom the duty is owed.
No one says that the woman must drive more carefully, more slowly even, because she is pregnant. The standard of care—and my hon. Friend the Member for Pontypool elaborated on this point in Committee—is a common standard: it is the duty to drive with reasonable care and skill having regard to all the circumstances, including such circumstances as whether an elderly and slow lady is crossing the road, and whether it is a dark night and a man in a black mac may appear. That is not in question. That standard of duty is not affected by the clause. It is the people to whom the duty is owed who are affected—namely, the people who will have a claim against the woman and, through her, against the insurance company if she falls below that standard.
12.15 p.m.
It was intended that the unborn child should be in the same position as everyone else. In other words, as with everyone else, there should be a duty of care to the unborn child if either the woman knew of its presence or if it is within the class of people whom she should reasonably contemplate as being within what I called earlier striking distance. I take the point of my hon. Friend the Member for Pontypool that some of the jurisprudents have argued that there might be a wider duty than this. If it were subsequently held that there was a wider duty—that someone whom one should not even have in contemplation might be within the ambit—to that extent what we are doing would


cut down the number of people who might claim.

Mr. Abse: Even if it is not a general duty of care but only a particular duty of care, it could reasonably be argued that any woman who takes part in a sexual act may produce a child. The amendment deliberately excludes that circumstance. If a woman has had sexual intercourse, unless she knew that she was pregnant, even though it was reasonable to assume that she might be pregnant, we are cutting out the possibility in that respect. The hon. Member for Exeter (Mr. Hannam) put his finger on the point when he said that this amendment takes away rather than adds a right.

The Solicitor-General: Assuming that my attempt to formulate the class of people to whom a duty is owed is right, it is unlikely that a lady who had had sexual intercourse but had very good reason to believe that she was not pregnant would owe a duty even under the present common law. I concede that a great deal can be said on both sides. The example quoted by the hon. Member for Eastbourne was a case of what the lawyers call fecundatio ab extra: there had not been penetration, so the lady reasonably thought that she could not be pregnant. However, I follow what my hon. Friend says.
The difficulty that we are all in is that there is little in common law about this matter because this would presuppose an area in which normally the duty would be owed to a pregnant woman. There have been very few occasions when a duty owed by a pregnant woman has been considered. The jurisprudence of a duty owed to a pregnant woman does not assist us much in this respect.

Mr. Weitzman: May I put this difficulty to my hon. and learned Friend? Clause 4(5) replaces the common law. If the amendment is accepted, Clause 2 will read:
A woman driving a motor vehicle when she knows (or ought reasonably to know) herself to be …
pregnant. That will replace the common law rule. It does not remove the possibility of arguing that under the common law a woman is still liable although she did not know. This is an

example of inserting words which may cause great difficulty in future cases.

The Solicitor-General: I wholly agree with my hon. and learned Friend. I have said that it is unlikely that a court will hold that there was such a duty at common law, but one cannot exclude the possibility and, to that extent, the amendment will remove that possibility.

Mr. Percival: It will remove the doubt.

The Solicitor-General: Yes.
I am not sure that I can assist the House further on this part of the case. That was the policy of the clause, that the duty should be owed by the woman to the unborn child if it was within the class of people—I use the term "people"—whom she ought to contemplate as being present, and not otherwise. That is what the original draftsmanship was intended to produce, but the hon. Member for Eastbourne pointed out that there might be doubt about whether it achieved that, and the purpose of the amendment is to remove the doubt.
If it is said that that ought not to be even what we seek to achieve, that we ought to try to achieve something else, I fully accept that there is that area in which there could be argument about policy. Let me explain my own position here. I have tried to assist the House because I thought that in Committee, following the arguments put by the hon. Member for Eastbourne, there was a desire that we should attempt to find such a formula. But, if I may say so, I am neutral in this matter. If the House does not wish to avail itself of the formula, I certainly do not intend to be persuasive about it.
I fully acknowledge the pragmatic arguments advanced by my hon. Friend the Member for Pontypool to the effect that we might be inviting some distasteful investigations by insurance companies, and so on. Plainly, that is one matter which the House will have in mind when reaching a decision.

Mr. Percival: Will the Solicitor-General agree with the following proposition? At present, it is possible that a child—an unborn child or a child after it is born—may have a claim against its mother in any one of the circumstances to which my hon. Friend the Member


for Eastbourne (Mr. Gow) referred. The Bill as drawn is resolving all those doubts by excluding those claims. That is the point: the doubt is resolved by excluding them.
What the Solicitor-General is here trying to do is to resolve a further doubt which, as is clear from the discussion in the Chamber today, will arise unless we resolve it, and the price being paid for resolving that doubt is very small compared with the price being paid for resolving the other doubts—that is, by ruling out a claim by a child where the mother had no reason to know that she was pregnant. I suggest that that is a very small price.
Most of us would think that such a claim would not run anyway. I think that that is the view which the promoter and his advisers took. They took the view that, as it stands, it would mean that only a mother who knew or ought to have known she was pregnant would be liable.
I subscribe to that view, and I therefore think that what is being lost here, if anything at all, is very small, and is but a small price to pay for certainty. I have intervened to put that proposition because I think that it ought to influence the House. In my view, the advantages of certainty gained by the Solicitor-General's amendment far out weigh any possible loss which might result.

The Solicitor-General: I am grateful to the hon. and learned Gentleman for formulating the proposition in that way. I entirely accept that the resolution of the doubt is what is being gained, and the price which we pay is excluding certain possible claims which he and I think would have been unlikely to succeed anyway. Whether the price is too high is a matter on which I should prefer not to express a view. I am content to leave that to the House.
I turn now to what it is best to do about the amendment. It seems that there is a clear desire that it ought at some stage at least to be available for further debate. One possibility is for me to ask leave to withdraw the amendment, on the basis that the same amendment could be moved in another place. The other possibility is to invite the House to pass the amendment on the basis that,

if it was thought right in another place to remove it, that could be done.
As a matter of procedure, I suggest that it would be easier to take it out later, and for that reason my preference would be to see the amendment passed today, though on the basis that the significant considerations which have been urged today should be considered in the other place. I am content to leave it in that way. I do not propose to ask leave to withdraw the amendment.

Amendment agreed to.

Clause 4

INTERPRETATION AND OTHER SUPPLEMENTARY PROVISIONS

Mr. Gow: I beg to move Amendment No. 2, in page 4, line 11, leave out from "child" to end of line 12 and insert
is alive at the date on which the writ or summons (as the case may be) is issued".
This amendment is directed to subsection (4) and relates to one matter only, namely, the circumstances in which a child should be entitled to damages for loss of expectation of life. Under the Bill as it stands, provided that a child has a life separate from its mother for 48 hours, it is entitled to damages under the head which we know as loss of expectation of life.
The Bill is based upon the recommendations of the Law Commission in its Report No. 60, presented to Parliament in August 1974, and I think it relevant to remind hon. Members of what the Law Commission had to say on this subject in paragraph 98:
We think that a cause of action for loss of expectation of life of a child who only survived birth by a few hours or even minutes is a possible eventuality which it is most desirable to avoid. In our report on the assessment of damages in personal injury litigation we have advised the total abolition of any right to damages for loss of expectation of life.
I shall return to that important paragraph later, and I pause now to interpose those observations. I should have liked the Bill to spell out the principle, which I believe ought to prevail, that there should be no damages whatever under the head of loss of expectation of life. My amendment would restrict still further the right of a child to damages under that head. It is a claim to damages which in many cases would go to the parents of the child, since the damages


would be payable either to the estate of the deceased child or, in those cases—few rather than many—in which a child was still alive but claimed damages for prospective loss of life, to the child itself.
This whole head of damage is coming into increasing legal disrepute, and I consider that the Bill would be improved if we were to restrict still further the right to claim damages under it. I give one example. A child suffers a disability as a result of the wrongful act of its father. Let us suppose that the child survives for 48 hours and one minute. Under the Bill as drafted, that child would have a right of action against its father.
The child having died, that right would have to be sued through the administrator of its estate, and it is most likely that the administrator would be a close relative, who would then sue the father. The father would pay damages to the estate of the child and, as the child would not have made a will, under the laws of intestacy that money could well revert to the father who had been guilty of the act which gave rise to the cause of action. That possibility would be reduced substantially by the amendment, which provides that there would be no claim for damages under this head unless the child was alive on the date when the writ or summons was issued.
12.30 p.m.
The selection of the period of 48 hours as the essential period for survival to give a right of action in a case of this kind is quite arbitrary. To give damages for loss of expectation of life to a child which has survived for only three days introduces a legal concept which goes in precisely the wrong direction under this head of damages.
In Committee the hon. Member for Birmingham, Northfield (Mr. Carter), who was in charge of the Bill, gave an undertaking to look again at this matter, particularly in the light of medical advice. It is in the light of that undertaking that the amendment has been tabled on Report and selected by the Chair.
In the absence, for reasons which we understand, of the hon. Member for Northfield, I hope that the Parliamentary Secretary to the Law Officers' Department will be able to deal with this matter and explain why, when the Law Commission is moving away from the head of damages

under loss of expectation of life, it is right to select a survival period of 48 hours as the sole criterion for a claim for damages under this head.

Mr. Abse: I oppose the amendment much more unequivocally than I opposed the previous amendment. I do not like it, and I shall explain why. The hon. Member for Eastbourne (Mr. Gow) rightly said that none of us likes the existing right to claim damages for loss of expectation of life. To the layman our dislike may appear to be confusing, but, if I may say so without appearing to be patronising, the lay Members of the House will appreciate that at present there is a right to claim for loss of expectation of life but it is a solatium, a solace for the bereaved. The amount that is claimed and obtained is an exceedingly small sum, ranging from£100 to a maximum of£500. In no circumstances would the right of dependants of persons who are killed to claim large sums be interfered with.
The Law Commission said that it hoped that the existing claim for loss of expectation of life would be abolished but that it wished to introduce a claim for an action for bereavement. That recommendation is contained within the Law Commission's report on damages, and that view is being considered by Lord Pearson's Commission.
It might be plausible to say that as yet the right of claim for bereavement has not been introduced and that we should anticipate events by accepting the amendment, but the Law Commissioners, having directed their attention to that matter, specifically said that if their recommendation had not been implemented by the time the Bill came before the House this provision should be included in the Bill. They are right in saying that. I do not wish any existing right to be taken away when we do not know what is likely to happen in the future.
The amendment means that in every case there would be a temptation to commence litigation. A protective writ would almost inevitably have to be issued for every disabled child, and it would be necessary for the negotiation of a claim to be started. Medical reports and assessments would have to be made. Even where there was partial or total admission of liability, it would take time. The effect of the amendment would be that


no solicitor could stop for a second before issuing a writ because the child might die for a dozen reasons not related to the original cause of the disability. For example, he might be killed in a road accident.
Neither the hon. Member for East bourne nor I are here as solicitors to stir up litigation. We are trying to help children who are disabled as a result of negligence. In every case, as soon as a solicitor who is consulted finds that there is a possibility that a disabled child has a case, he must immediately start litigation and issue a protective writ. That would impose a heavy burden on the solicitor. He has enough burdens as it is, and the amendment would stir up unnecessary litigation.
As there seems to be general agreement amongst the profession that a claim for the loss of expectation of life should be abolished, and as there has been a firm recommendation from the Law Commissioners, which is being considered by the Royal Commission, that that claim should be substituted by a bereavement claim, we should not provoke litigation in the way which I fear would occur in the event of the amendment being accepted.

Mr. Percival: In putting forward the amendment, my hon Friend the Member for Eastbourne (Mr. Gow) acknowledged that there are difficulties. I agree with what he said, and also with much of what the hon. Member for Pontypool (Mr. Abse) said. I still think, however, that Parliament should find an answer to this problem before the Bill becomes law. While the amendment might to some extent have the consequences to which the hon. Member has just referred, and these must be considered, there is no doubt that, if the Bill stays as it is, it may have the consequences to which my hon. Friend the Member for Eastbourne referred.
If we take my hon. Friend's example and relate it to Clause 2, we could have the very unattractive possibility of a mother being both plaintiff and defendant, or the father being put up as the notional plaintiff on an issue on which the mother was the defendant, both of them seeking to recover money, not to compensate the child—which is the purpose of the Bill—but to provide some sort of solatium for themselves.

Mr. Abse: Does the hon. and learned Member agree that that already applies to a living child who may have suffered injuries as a result of negligence by the father? If the child died, a claim would be made and the money would go to the estate. We are not adding to the existing situation. A small Bill like this one should not be overloaded with what are undoubted major reforms.

Mr. Percival: Of course it is not peculiar to the Bill, but why repeat the difficulty in the Bill—and at the same time create a problem for doctors? The hon. Member has not referred to further consultations, and I do not want to go into that. This is a matter which is particularly suitable for discussion in another place, where considerable medical opinion is available at first hand.
I raise the matter of 48 hours because some very senior doctors asked me what is expected of them. They have said "We can keep almost anybody alive for 48 hours. Are we supposed to use all the means at our disposal to keep a child alive for 48 hours so that a claim will not be excluded by Clause 4, or not?" That is not an easy question and I do not know the answer. It is a moral judgment. If the doctor does not keep a child alive for 48 hours, the possibility of a claim will fall. If, however, the doctor succeeds but the child dies in the next 24 hours, that will create the situation which my hon. Friend has just instanced. This is not an isolated example of such difficulties but why create another situation in which the difficulty arises—coupled with a difficult decision for doctors?
There is a case for the promoters of the Bill taking the bull by the horns. They should accept everything that has been said about damages for loss of expectation of life and, hoping that the House will deal with the matter in other areas very soon, they should say that in this case they will exclude such damages because they are only concerned with looking after children who suffer disabilities. That would be more logical, it would give full effect to what is intended in the Bill and, at the same time, it would avoid putting a burden on doctors. We should thus avoid multiplying a very unattractive situation which could arise between a child and its parents in a claim for loss of expectation of life.
I urge hon. Members and those who will consider the Bill in another place to take this not very big or bold but positive step, which would avoid all the difficulties, without detriment to anyone we are trying to help in the Bill. I hope that the promoters will consider carefully what has been said.

12.45 p.m.

Sir J. Langford-Holt: Not for the first time, the House is very much indebted to my hon. Friend the Member for Eastbourne (Mr. Gow), not only for bringing forward the amendment but for his many contributions in Standing Committee.
The Bill provides that a claim exists for a child if it lives for 48 hours. On the other hand, if a child dies within 47½ hours no claim exists.

Mr. Gow: Only under this heading of loss expectation of life.

Sir J. Langford-Holt: Yes. This brings in the whole question of medical ability to keep a human being alive for 48 hours or slightly longer. I do not like the arbitrary figure of 48 hours, but I have many reservations about my hon. Friend's proposal, namely, that a child must live until a writ or summons has been issued. It immediately transfers, to a certain extent, the likely success or failure of any claim or the presence of any claim on to shoulders other than those where it should belong. Such responsibilities and liabilities are placed upon the shoulders of lawyers at all times, but one does not want to do that unless it is necessary.
The position in this case is not like that in any ordinary situation. It is rather like a knife edge of survival, when death may occure at any time and a writ or summons must be issued before death occurs. Holding writs or summonses may be issued on many occasions, just in case, to preserve the situation.
When life is in the balance, parents are not in any fit mental state to look with much favour at the idea of deciding whether to give instructions about issuing a writ or summons.

Mr. Abse: The question of stress would apply not only to 48 hours but in any other case.

Sir J. Langford-Holt: I made it clear that I do not like 48 hours. I do not know what figure I would have—not the year and a day as in murder cases—but this is a matter of circumstances.
The promoter of the Bill referred to stress on Second Reading when he said:
It is said that the Bill will increase the stresses that are bound to arise when a child is born disabled. This may be so to the extent that making a claim at law involves a measure of stress, but the Law Commission was careful to frame its proposals to reduce the risk of stress to a minimum."—[Official Report, 6th February 1976; Vol. 904, c. 1593.]
I use those words to emphasise that it was clear in the mind of the promoter and equally clear in my mind, as I am sure it is in the minds of all hon. Members, that such stress exists. This issue raises the whole problem of when life starts. What is life? The Bill states that the life must be separate from the mother. Of course, the Catholic Church would take a very different view.
The Bill states that we cannot compensate what is virtually dead, unless it lives for the requisite 48 hours. Like the hon. Member for Pontypool (Mr. Abse), I am worried about possible holding litigation which might take place. If I were a parent in such a position—which God forbid—I know what I would do in those circumstances.
I am not pinning myself to the 48-hour limit, but I do not like it. For example, although this matter has nothing to do with the driving about which we were talking earlier, I should prefer it to be illegal for anyone to have a drink within one hour of his driving a motor vehicle. That kind of provision would have clarity. For that reason, I do not like the amendment. It lacks clarity and blurs the edges. I should prefer to have not the 48-hour period but a greater degree of clarity which would be understandable and would not place stresses and emergencies on the shoulders of those who at the time would be unfitted for them.

The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson): There is nothing like making


a dramatic entrance, particularly for one's first intervention in proceedings on a Bill of this kind.
First, I should like to add my congratulations to the sponsor of the Bill, my hon. Friend the Member for Birmingham, Northfield (Mr. Carter). It gives me particular pleasure to congratulate him as he is a very close hon. Friend. While we have all missed his taking part in the proceedings on the Bill today, I am sure that that is more than compensated by seeing him in his rightful place on the Government Front Bench.
The hon. Member for Eastbourne (Mr. Gow) rightly said that in Committee my hon. Friend the Member for Northfield agreed to approach the British Medical Association and the Royal College of Obstetricians and Gynaecologists for an opinion on the 48-hour rule, which is the basis of argument on the amendment.
My hon. Friend wrote to both bodies on 26th February. As far as I am aware the BMA has not yet sent a conclusive reply, but two senior members of the Royal College of Obstretricians and Gynaecologists saw him early in March. After a detailed discussion, they told him that they considered that the provisions for the 48-hour rule were right. They thought that there might be something to be said for extending the period to seven days, which might be more in line with the thinking of the hon. Member for Shrewsbury (Sir J. Langford-Holt), so that it would correspond with the generally accepted period of perinatal death, but they concluded that was not a strong reason for making any change. It is certainly contrary to the suggestion in the amendment.
At the suggestion of the two senior members of the Royal College of Obstetricians and Gynaecologists, my hon. Friend wrote to the Secretary of the British Paediatric Association inviting its view on the matter. As far as I am aware the association has not yet replied. I am sure that the hon. Member for Eastbourne would agree with me that, if the association felt that the 48-hour rule was wrong, that responsible body would have given its views. It has not done so. Therefore, I conclude that it is not dissatisfied with the rule.

Sir J. Langford-Holt: What is the status of the notion of seven days, which as far as I am concerned is a better period, because the enormous emotional stresses to which I referred would certainly be lessened? I should feel much happier if there were a chance of that period being given close consideration perhaps in another place.

Mr. Davidson: I shall explain a little later why 48 hours is not a particularly arbitrary figure, as the hon. Gentleman might think.
My hon. Friend the Member for Pontypool (Mr. Abse), who took part in the Committee stage—I did not—explained fully the reasons for resisting the amendment. I agree entirely with his arguments.
Basically, there are two reasons for the provision of the 48-hour rule. The first arises from legal policy. The Law Commission—this matter has been explained in detail by my hon. Friend, but perhaps I should repeat it briefly—on whose recommendations this provision is based, regards the cause of action for loss of expectation of life as unsatisfactory—it is artificial—particularly in a case where the claim lies for the death of a young child.
In another report—"Assessment of Damages, Law Commission No. 56"—the Law Commission recommends that that cause of action should be abolished and be replaced by a right of action for bereavement at the suit of close relatives. That recommendation is under consideration and is unlikely to be implemented before the Government have received the recommendations of the Royal Commission on Civil Liability and Compensation for Personal Injury, known in short as the Pearson Commission.
In the meantime, the Law Commission recommends that the cause of action for loss of expectation of life should be restricted, at least in cases arising from the deaths of young persons, and proposes that, in a case where an action arises from pre-natal injuries, such a claim should not be made if a child dies within 48 hours of its birth.
The second reason for the 48-hour rule is one of social policy, as has been pointed out. There are many cases in which a hopelessly inadequate foetus


comes to term and, although born with indications of life, has no chance of survival. In such a case it is thought better that the parents should, as far as possible, forget what has happened and think only of the children they already have or may still have. It is undesirable to keep alive a memory of a tragic and upsetting event, which is best forgotten, by holding out the prospect of a claim for damages which, in the present state of the law—again, my hon. Friend pointed this out—could lead only to the award of a modest sum.
With those considerations in mind, the question is whether 48 hours is the right period. The fixing of a certain period is bound to impose an arbitrary division. Bearing in mind the social purpose which I have just mentioned, the advice received by my hon Friend suggested that 48 hours was about the right period.
1.0 p.m.
The sponsor of the Bill was concerned, as he Pointed out in Committee, that provision should be included in the Bill to eliminate the wholly artificial cases of children who survived for only a very short period. He pointed out in Committee that there was statistical evidence that of a child born with a major disability died, it was likely to die with in 48 hours. That may go some way to answering the point and clearing the genuine doubts of the hon. Gentleman. I do not think it would serve any useful purpose if I elaborated further. I will understand the point.
The point made by my hon. Friend about the issue of writs and the pressure on the parents is a very real one. In all the circumstances, particularly in view of the zealous further inquiries made by my hon. Friend, I ask the House to resist the very well-intentioned amendment moved by the hon. Member for Eastbourne.

Mr. Gow: It ought not to be taken that the fact that there has been no reply to the letters that the hon. Member for Birmingham, Northfield (Mr. Carter) has sent to these distinguished professional bodies necessarily means that the professional bodies have no comments to offer. More than two months have elapsed since we completed the Committee stage of the Bill, and I hope that the hon. Gentleman will make

available to those in another place the replies he receives from these professional bodies. May I offer the thought that it might be advantageous to stir them up and get them to express a view about it?
The debate has shown a very real doubt on both sides about the wisdom of continuing at all with this head of damages. I said in moving the amendment that I wanted to come back later to the conclusion of the Law Commission in paragraph 98 of the report on which the Bill is based. The conclusion to which the Law Commission came is this:
We think that, in relation to claims for damages for pre-natal injury, the desirability of implementing this proposal"—
that is, the proposal to abolish loss of expectation of life as a head of damage—
is even stronger than it is in relation to claims for damages for personal injury".
I believe that to be so, and I fear that subsection (4) of Clause 4 will turn out to be a very unsatisfactory provision. However, in view of the views expressed on both sides of the House, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.4 p.m.

Mr. Jack Ashley: I beg to move, That the Bill be now read the Third time.
The whole House will be grateful to my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) for introducing the Bill and for the way in which he did it. I know that both sides of the House will also want to congratulate my hon. Friend on his recent promotion which is quite clearly only the first step in what will obviously be a very distinguished career. I offer him the warm congratulations of hon. Members on both sides.
Many people would also like to express their appreciation to the Law Commission for its detailed work which enabled my hon. Friend to introduce the Bill, as well as to thank my hon. and learned Friend the Solicitor-General and my hon. Friend the Parliamentary Secretary to the Attorney-General for the work they have done.
Having been through the various stages of the Bill, and having been involved in


the discussions both here and outside, I should like to pay tribute to my remarkable and redoubtable hon. Friend the Member for Pontypool (Mr. Abse) for the support he has given to the Bill. I do not always agree with him, but I should like him to know that his contribution both inside the Chamber and outside has been much appreciated.
The constructive criticism offered by hon. Members on both sides of the House has been very valuable since it has cleared away many misunderstandings about the Bill and, I hope, allayed quite a number of fears. I confess, however, that I have very little time for those who have been working assiduously to cripple the Bill or, if possible, destroy it.
The Bill arises directly from the thalidomide disaster, as my hon. Friend said in his opening remarks. It will confer clear legal rights on children who are injured before birth. This has always been a grey area, befogged by legal doubt and clouded by judicial uncertainty. The Bill clarifies and codifies the rights of these neglected children. It puts them on the same level as all other injured children and gives them the same opportunities of suing for damages. It is a small nugget, but a nugget of gold, which gives fresh hope and new opportunities to a small minority of disabled children.
Those who have sought to destroy the Bill must accept the clear logic of their position, which is that under the existing system children who are damaged before birth should have no right to sue. If that had clearly been the case during the thalidomide campaign, it is probable that the thalidomide children would have received nothing.
Opponents of the Bill accuse Members of this House of assuming that they are passing a major piece of legislation and suggest that Members will be less ready to overhaul the whole system after the Pearson Commission has reported. I do not think they should assume that Members of the House are so foolish. They should have taken the trouble to read the Second Reading debate. In that debate many hon. Members—including my hon. Friend the Member for Northfield, my hon. Friend the Member for Pontypool, the Solicitor-General and myself—stressed the limited scope of the

Bill. In fact, the Solicitor-General finished the debate with these words:
This is a modest Bill. Although there was a difference of opinion about that, I am with those who call it a modest Bill. It is of limited application and is possibly for a limited period."—[Official Report, 6th February 1976: Vol. 904, c. 1648.]
It could not be put more specifically than that. There is absolutely no scope there for self-delusion by hon. Members, and I know that no Members have been deluded by the scope of the Bill. Nevertheless it is one of very great value, and we should not underestimate its value to the children.
Some of the critics advocate a system of no-fault liability, and they seem to assume that all the sponsors of the Bill are opposed to a system of no-fault liability. I cannot speak for the other sponsors. All I can say is that I personally favour no-fault liability, but I am not prepared to wait for the years it may take for the Pearson Commission to report and for the subsequent legislation to be enacted and meanwhile leave some children without legal redress for injuries.
Some people object to the Bill on the ground that litigation by families will cause distress. I do not believe that there could be a more foolish argument. The Bill compels no one to sue. It merely gives the opportunity to those who wish to do so. That is a very important distinction. If we accept the argument that Parliament should not create legal rights because the exercising of them will cause distress, we might as well shut up the shop and go home. It is not for Parliament to deny a deserving group of children legal rights on the wishy-washy, patronising ground that it would cause them distress if they chose to exercise them. It is our responsibility to create such rights, and it is up to the individual to decide thereafter whether to exercise them.
It has also been claimed that the Bill, which will help a small minority of handicapped children, will jeopardise the long-term interests of the minority. I am disturbed by that criticism. It is a nonsensical claim which is quite unfounded and for which no evidence has been adduced. However, it is a charge which has been vigorously peddled. In fact, the reverse is the case. Although


we have repeatedly emphasised that only a small number of children will benefit from the Bill directly, the very fact that damages will be awarded to them will draw attention to the severity of the problems of all disabled children.
The thalidomide campaign proved that point. As a direct result of the campaign and the financial benefits that stemmed from it, great pressure was built up throughout the county and throughout the House for a better deal for all disabled children. That pressure is still continuing.
As a direct result of the thalidomide campaign, the Rowntree Trust was set up and £3 million was allocated to help all disabled children throughout Britain. Since then many more millions of pounds have been allocated to the fund, all of which is helping disabled children. Although the thalidomide campaign was directed to only a few hundred children who were disabled by thalidomide, the benefits have been derived from the fund by thousands of people all over Britain, none of whom would have enjoyed them without the campaign.
As we have repeatedly emphasised, the Bill will he of direct help to a small number of children. However, I believe that it will lead to a greater interest in the fight on behalf of other children, even though they already have the right that is outlined in the Bill. Anything that extends the rights of disabled children is to be welcomed. They can rest assured that some of us who are concerned with their plight are determined to go much further and shake up the whole system as soon as the Pearson Committee reports.

1.13 p.m.

Mr. Hannam: I offer my congratulations to the hon. Member for Birmingham, Northfield (Mr. Carter) on his Government appointment. I am sorry that the hon. Gentleman has not been able to pilot this piece of legislation through its final stages on Report and on Third Reading.
I shall speak briefly on the Bill's general objectives. This is the first opportunity I have had to do so as, unfortunately, I was away for Second Reading. Those who have been involved in supporting the Bill will know of my very close interest in any measure which will help disabled and handicapped children to achieve better integration into normal

life through financial assistance. Any step forward, however small, is to be welcomed. I believe the Bill to be a tiny step forward. That is now accepted, I think, as the general view of most hon. Members. It is a tiny step forward to a fairer system of compensation for pre-natal injuries. Therefore, I support the Bill.
As a layman in legal matters, I must express some anxiety about the possible results of this legislation. Some of them have been expressed in our debates on Report. Those debates showed that we are all becoming more and more aware of the problems that will emanate from the complexities of some of the clauses.
When I spoke in the debate in 1973 on the possible introduction of a system of no-fault liability, which many of us support and which I certainly support, I pointed out that such a system had been operating successfully in New Zealand. I hope that in the not too distant future the system will be adopted in this country. When I consider the complexity of drafting laws in any other way to deal with pre-natal injuries, I become even more convinced that a no-fault system would be the most effective and fair way of proceeding. That applies to vaccine-damaged children and many other categories of pre-natal injury and negligence.
The members of the all-party Disablement Group will know of the deep anguish that is caused to the parents of damaged children and the expense and difficulty which they face. That is why as a group we favour the granting of general disability allowances to remove the necessity of having to go through the courts to apply for the compensation that we are talking about today.
My first fear is that such compensation will create over-expectation among the thousands of handicapped families. I must challenge the figures that were given by the Solicitor-General on Second Reading as reported at columns 1641 and 1642 of the Official Report. The hon. and learned Gentleman said that some 1,000 children a week, totalling 50,000 a year, were being born with handicaps. He said that it was his contention that
even taking a very small proportion of the 50,000 children in this category every year, that would he a very substantial sector of human suffering alleviated."—[Official Report. 6th February 1976; Vol. 904, c. 1642.]


To be fair to the hon. and learned Gentleman, and as the hon. Member for Stoke-on-Trent, South (Mr. Ashley) has pointed out, he also warned that it would be wrong to raise false hopes among those for whom a remedy was not being provided. However, he implied, with the quoting of the figures to which I have referred, a greater success story than I and most realistic colleagues would accept.
It is vital in passing this legislation that we ensure that its limitations are made starkly clear, so that without any doubt we do not give any false hopes to the 98 or 99 per cent. who will not have any recourse to this new law for compensation.
Mr. Peter Mitchell, the hard-working research assistant to the all-party Disablement Group, took up the figures with Professor Ronald Illingworth, of the Sheffield Childrens Hospital, who, according to the Medical Defence Union, was the expert largely responsible for the evidence that it has presented to the Law Commission. Professor Illingworth pointed out in his reply to the group that for various detailed reasons—for example, a 25 per cent reduction in the birth rate—a more accurate estimate of deformed and handicapped births would be nearer 300 a week. That brings the figure down to something more realistic in the region of 15,000 a year rather than 50,000.
Professor Illingworth concluded his letter to the all-party group with these words:
When I gave evidence to the Law Commission I emphasised that the proportion of cases in which one can precisely ascribe the handicap to an error of management in pregnancy is exceedingly small: no one could put a precise figure an this. In reply to a question I guessed that in not more than 1 per cent. or 2 per cent. could one confidently state that a child's handicap was due to some error of management…it would be most unfair to compensate the extremely small minority in which there was an error, while the vast majority received no compensation because no cause can be found.
In reality, we are talking of a tiny handful of people who, in the final event, might be successful in obtaining some benefit which they did not have before—possibly ten or 12 a year. it is important that we should speak in realistic terms and that we should be cruel to be kind.
My hon. and learned Friend the Member for Southport (Mr. Percvival) said on Second Reading that he hated laws that failed to live up to expectations. I agree with that sentiment, especially at this stage of the Session, when 49 pieces of legislation have already been presented and many of them will fail to live up to expectations.
The thalidomide problem of faulty drugs has never been legally resolved, and it probably never will be. The magnificent efforts of the hon. Member for Stoke-on-Trent, South, together with those of the Sunday Times and of other hon. Members. including my hon. Friend the Member for Reading, South (Dr. Vaughan), resulted in an out-of-court financial arrangement, resulting in the provision of assistance through the Rowntree Trust. I take the point made by the hon. Member for Stoke-on-Trent, South that by highlighting one matter one begins to resolve other problems. Since then we have seen a strengthening of the medicine licensing rules, which will considerably reduce the dangers of a recurrence of the dreadful problem of faulty drugs.
I am assured that, if this legislation had been passed before the thalidomide case, it might have removed 5 to 10 per cent. of the doubt. Nevertheless, I accept that that would still have lifted the level of compensation from 40 per cent. to 60 or 70 per cent. That point was made by the hon. Member for Pontypool (Mr. Abse).
But the major problem of proving negligence on the part of the scientific advisers or the doctors, or whoever the defendant might be, still remains. Now, however, the inducement on the art of the defendant to fight in the courts against the charge of negligence will be greater than under normal tort. Mothers could find themselves under surveillance during the whole of their pregnancy. They would be open to scrutiny for a reduction in damages. The defendant would endeavour to prove that a mother had been negligent—that, for example, she had played tennis, ridden a horse or played too energetically with her other children. In California, as a result of similar legislation, doctors' insurance premiums have reached a figure of £10,000 a year, yet the legal and administrative costs are so great that only 17 per cent. of the premiums actually reaches the victims of accidents.
My fears are that a worthy intention may not produce the result which those who are handicapped may be expecting. As Lord Pearson pointed out in his letter to The Times on 28th January this year,
The Bill, so far from dealing comprehensively with a widespread and highly distressing social problem, could result in compensation for no more than a minute proportion of the children concerned.
Therefore, I am not over-optimistic about the results to be obtained from the Bill.
However, having made those points, I wish to congratulate the sponsors for giving us a chance to draw attention to the urgency for the Royal Commission's report on civil liability. These debates have enabled Parliament to take another close look at the awful financial problems of the handicapped and disabled in our society. I hope that we can avoid creating false hopes and, instead, use the Bill as a stepping-stone towards a fairer and more equitable system of no-fault liability.

1.26 p.m.

Mr. Abse: I wish to congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter), the sponsor of the Bill, on his original initiation of these matters, and also on giving us an opportunity to make a genuine exploration of the problems that beset parents in these tragic cases.
It was right that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) spoke in blunt terms, and he did so with considerable authority following the campaigns for which he had been responsible. His stern words were directed at those who seem to have found it necessary to underestimate the Bill as a catalyst—or, worse, those who seem to believe that in supporting this Bill we have been under some misunderstanding. It should be made clear that from the beginning we have clearly understood its limitations and objectives.
I trust that, after the House has given so much attention to this matter, agitations will not be pursued by those who, somewhat elliptically, wish to sabotage the Bill. The other House must understand the will and wish of this House that the Bill reach the statute book

and that it should do so with the minimum of interference and with the maximum of speed.
The House cannot legislate against destiny. Destiny might cause each week 500 children to be born disabled. Happily, the numbers appear to be fewer than was believed to be the case by the Solicitor-General, and perhaps by the Law Commission on the evidence before it. This House can do little to mitigate the consequences of the tragic destiny of thousands of disabled children. The medical profession and the support that we give it is much more likely to reduce the numbers of disabled children as the hon. Member for Exeter (Mr. Hannam) made clear.
There has been an over-estimation in the past of the number of children born disabled precisely because of the advances of medical science. But we must be careful, now that we are reaching the end of these proceedings, not to be excessively self-deprecating about what we have done. There is a danger that, the House having spent a great deal of time today discussing legal technicalities, it should be thought that we have not fully appreciated the considerable effort and initiative taken by the sponsors of the Bill, particularly my hon. Friend the Member for Northfield.
We should categorise quite speedily the type of case to which the Bill gives relief. It is important when we pass laws that they should be known outside. Some of the evidence given to the all-party committee on the disabled illustrated that too often people do not know their rights. We should not speak with too much humility in this place and in such a whisper that it is not known outside the House what we are doing and what rights come into existence on the enactment of the Bill.
There are a number of categories of people who, as a result of the passing of the Bill, will receive relief. There is the pregnant mother who is knocked down by a drunken driver and who as a result has a child who is mangled. Under the Bill she will be able to make a claim for damages. Furthermore, a woman factory worker who receives pelvic injuries and who later gives birth to a damaged child will as a result of the Bill's provisions, provided that her original injuries


were caused by a breach of safety regulations in the factory, have a definite claim for damages.
A sloppy hospital giving a transfusion from the blood of a syphillitic to a woman who subsequently conceives to become the mother of a child cursed with congenital syphillis will in future have a definite claim for damages. If a dangerously negligent doctor diagnoses a pregnancy as a tumour of the womb and if subsequent X-ray treatment damages the foetus, there will be a definite claim for damages.
If a doctor, without taking reasonable care—he is not expected to go beyond reasonable care or current professional standards—unnecessarily administers the drug stilboesterol to a pregnant woman, which later leads to vaginal cancer in her adolescent daughter, as it can, there will be a claim for damages. Although the opportunities for such claims may appear to be few, practising solicitors know that a wide variety of cases have come to them over the years for which there is a lack of coercive power to begin negotiations.
The Bill is a preventive measure. Because of the efforts made by my hon. Friend the Member for Stoke-on-Trent, South and the hon. Member for Reading, South (Dr. Vaughan) and others who concentrated attention on the thalidomide controversy, the Bill will now ensure that drug manufacturers know that they must be careful to maintain proper standards of care. The Bill diminishes the doubts about rights should there, unhappily, be a tragedy similar to that caused by the drug thalidomide. The Bill will introduce a right for victims to proceed in a way which is not as ambiguous as at present.
The Bill anticipates extraordinary changes. I shall deal with just one which I regard as important. We are all aware of some of the consequences of the fertility drug. We know how desperate and clamorous is the desire of those who are infertile but who want children. We know, from the demand which cannot be satisfied of those who wish to adopt children, that there are a large number of people who are anxious to have the experience of parenthood. Because of that, although in practice there is much discretion—I will not say conspiracy—about the issue, there is an increase in the practice of artificial insemination.
That practice is growing in every country in the world and we all understand the reasons for it. When a husband is infertile or sub-fertile, it is a practice which may produce a family. Many there fore choose that procedure because they believe that it is the natural right of married couples to have children. But when there is a demand for anything, inevitably a market comes into existence.
Those of us who keep in touch with the work of the British Association for the Advancement of Science are aware of its opinion that there should be some control over private sperm storage banks. They exist in many parts of the world and there is no statutory control over them in this country. It is important to ensure that private, commercial sperm storage banks observe proper standards of care. If they fail to do that, a disabled or misshapen child may be born.
Until the Bill is passed, such sperm storage banks may believe that they are immune from the law. The Bill will make certain that a definite right would exist for the parent of a disabled child born because of improper standards being maintained in an artificial insemination sperm storage bank.
We should not be too deprecating about the Bill. It is a useful measure. As the hon. Member for Exeter rightly stressed, it has drawn attention to the large area that is still not covered. I do not declare, as others have, that the solution is a no-fault solution. I await the Royal Commission report but reserve my position: but I believe that the Bill does deal with only a limited area, leaving a large area still unresolved.
I am grateful to my hon. Friend the Member for Northfield for permitting me to be so active in the processing of this Bill, because I believe that it is life enhancing and shows its respect for the unborn child. I have so far refrained entirely from enmeshing the Bill with the abortion controversy, but I cannot refrain from saying clearly at a time when too often there is a casual attitude to life in an increasingly secular society —to which I belong as a secularist—that there is often a lack of regard for the sanctity of life. The House is doing something to correct that unhappy attitude by approving a Bill which clearly shows that we believe that there can be no boundaries to our compassion, and


that we extend our compassion, as the Bill does, to the unborn child.

1.40 p.m.

Sir Stephen Mc Adden: In supporting the Third Reading of the Bill, I should like to take the opportunity to congratulate the hon. Member for Birmingham, Northfield (Mr. Carter) on his success in promoting it and in achieving its Third Reading. If it does not sound too patronising, may I also compliment him on his preferment. I wish him every success in the administrative field.
Fridays are interesting days in the House. Private Members' Bills are introduced and motions are discussed. We owe a great debt to the regular Friday Members who take the trouble to come, to look at legislation and to discuss it.
I am particularly grateful to the hon. Member for Pontypool (Mr. Abse) and the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) for the way in which they explained what legal objections there are to the Bill, which might not have been apparent to the ordinary lay Member.
In considering the Bill, I have recalled crimes that might be attributed to me. It will surprise the House to know that many years ago I used to act as master of ceremonies at dances. I used to engage a band which featured Gladys Mills, now world-famous, and paid her and a three-piece band £10 to play at dances. It would cost a great deal more today. In the MC-ing of one of those dances I inflicted a grave injury on the wife of a former Member of this House.
We had an elimination dance called "O'Grady Says". The competitors were so expert at doing what O'Grady said—at putting their hands up and down and so on—that I had to introduce some more rigorous performances in order to fault them. The wife of the former Member in question neglected to tell me that she was pregnant, and unfortunately she had a miscarriage. I would not have been caught by the Bill, which deals only with children born with physical disabilities, but that shows how innocently, without knowing anything about it, one may find oneself in serious difficulty.
The most telling speech today was that of the hon. Member for Pontypool, who earlier described all the confidential and private matters that would have to be investigated to establish the point dealt with in the first amendment:
knows (or ought reasonably to know) herself to be
pregnant. I am sure that we do not want a system of society in which the courts are crowded with cases in which they have to investigate the sexual life of those concerned and what kind of preventives they use, if any. Therefore, I hope that when the Bill goes to another place consideration will be given to the words of wisdom spoken by the hon. Gentleman and the hon. and learned Member for Hackney, North and Stoke Newington, and no doubt by other hon. Members when I was absent from the Chamber.
The Bill is undoubtedly well-meaning. It is designed to do something good. I fervently echo the words of the hon. Member for Pontypool, who said what a pleasure it was to join in the discussions on a Bill concerned with human life and not with destroying human life, a Bill which seeks to make life better for the children born into this world suffering from disabilities. It deserves the good wishes expressed by all those who have taken part in the debate, though there are certainly matters which require more serious and earnest consideration than can be given in the House on a Friday afternoon.
I should like to utter one word of caution to hon. Members who are considering these matters. I am surprised that so few of the sponsors of the Bill have bothered to come today. I understand other hon. Members not being here, but the sponsors should have been here to lend their support. I wish the Bill every possible success.

1.45 p.m.

Mr. Gow: I add my congratulations to the hon. Member for Birmingham, North field (Mr. Carter), first, on having piloted the Bill through the House, apart from today's proceedings, and, secondly, on his appointment as a Minister.
As the hon. Gentleman told the House on Second Reading on 6th February. The


Bill stemmed from the thalidomide disaster. It was after that disaster that the Law Commission reported, producing its report in August 1974, and it was on the basis of that report that the hon. Gentleman introduced the Bill on 17th December last year. Now, less than five months later, the Bill is having its Third Reading and it will no doubt leave this place today for another place. That is a fairly speedy passage for a Private Member's Bill. It is a tribute to the hon. Gentleman's perseverance that he has carried the Bill through so quickly.
The speech by my hon. Friend the Member for Southend, East (Sir S. McAdden) was very telling. He reminded us that the purpose of the Bill is to help children, to compensate them in so far as money can for what are sometimes terrible disabilities whose cause is an event involving the mother or father before birth and sometimes before conception.
The Bill only gives a right to those children resulting from a wrongful act. It is important that we should make clear as the hon. Member for Stoke-on-Trent, South (Mr. Ashley) did when he moved the Third Reading, that this is not a no-fault Bill. As I think the hon. Gentleman recognises, it will present serious legal difficulties, difficulties of interpretation. But that should not prevent us from seeing that its prime objective is to clarify the law and to make clear that the unborn, innocent child should receive protection from a civilised society.
I agree with my hon. Friend the Member for Southend, East and the hon. Member for Pontypool (Mr. Abse), who made a moving speech, about the refreshing tonic that the Bill provides compared with some of the dreary and uninspiring legislation which comes before the House.
In praising the hon. Member for North field for the Bill, and in acknowledging the desirability of giving innocent children born disabled as a result of a wrongful act a clear right laid down by Act of Parliament to seek money compensation for their disability, one is also right—I regret having to say this—to emphasise the inevitable limitations of an Act in redressing that suffering and human distress. In many cases where a child is born disabled as the result of a wrongful act, the wrong-doer, even where he

can be identified, will not have the financial resources to provide compensation. It was to that point that the hon. Member for Stoke-on-Trent, South directed himself when he argued for no fault liability.
That is why it is important that the House should make it clear to parents and to professional advisers—to doctors and lawyers—that, although the Bill will confer a clear right upon children born disabled as a result of a wrongful act, that, sadly, does not mean that in many cases, or even in most cases, compensation will be payable. The fact that there will be many people who will not be benefited by the Bill should not obscure the fact that there will be many children who will be benefited. That is what the Bill is directed to.
The Bill has been carefully considered in Committee and in thoughtful speeches on both sides today. It leaves this House for another place with the best wishes of this side of the House. We are confident that it will be carefully considered there. Above all, the Bill goes from the House with good wishes to the children whose present legal status is the reverse of clear, because the Bill, despite all its failings, all its shortcomings, and all its lack of perfection, makes the legal status and the rights of those children clearer.
My last words are again words of congratulation to the hon. Member for North field. We wish the Bill and the children whom it seeks to serve success. We hope that the result of our deliberations will be the alleviation of suffering.

1.53 p.m.

Sir J. Langford-Holt: The background to the Bill was the terrible tragedy of thalidomide which excited the interest and aroused the sympathy of the whole nation. Great credit is due to the hon. Member for Stoke-on-Trent, South (Mr. Ashley), who played such a great part in bringing the tragedy to our attention and exercising our consciences.
I attended the Second Reading debate and both days of the deliberations in Committee. I had the fortune, or the misfortune—hon. Members take a different view about this—of not being a member of that Committee, because I did not make a speech on Second Reading. However, I certainly do not intend to start complaining about not being included in


the membership of any Standing Committee.
I repeat that the backdrop to the Bill was the thalidomide tragedy. The scope of the Bill is very limited but, as so often with Private Members' Bills, it is a sincere effort to alleviate suffering. However, I do not think that it covers the situation of somebody who, as a result of another thalidomide tragedy, so to speak, has a miscarriage after seven months. Nor does it cover the greatest shock of all, namely, sudden death, even allowing for the 48 hours.
Other matters are not covered. There are the extraordinary things that women do to themselves. Further, we do not yet know whether there will be any effect on the next generation from such things as air fresheners, hairsprays and spray wood polishes. However, the Bill seeks to put some small matter right.
I look somewhat askance at the usual whitewash attempt that is made in the Bill—the way it clears the yardarm, to use a naval expression, of all those who act in a professional capacity of any responsibility. The Bill uses the words "professional capacity". What is a profession? When I was brought up, the only professions were the Church, the Law and the Army, apart from the oldest profession of all. There is lack of clarity in the Bill. Can any of our legal friends in the House explain whether the word "professional" has any legal basis and, if so, what? As a layman I am fascinated by the use of the word here, quite apart from its whitewash implications. I am also puzzled in this context by the use of the word "he" rather than "he or she" although the expression "his or her" is used elsewhere in the Bill.
My hon. Friend the Member for East bourne (Mr. Gow) said that many will benefit from the Bill. Has the Parliamentary Secretary any idea of how many will benefit—I accept that it may be a purely arbitary guess—leaving aside those affected by the thalidomide tragedy?
The Royal Commission will probably report in the middle of next year or at the end of next year. It has been pointed out that this is something of a stopgap Bill and we should not kid our-

selves that it will be a solution to all our problems. On Second Reading the hon. Member for Birmingham, Northfield (Mr. Carter) read out part of a letter that he had received from the Chairman of the Royal Commission, Lord Pearson. The hon. Gentleman then seemed a little uneasy about the speed at which the Royal Commission was likely to proceed. After many years in the House I have become a parliamentary sceptic about the motives of Governments. All Governments are bad and some are worse than others, but I take the view that this is the worst Government of the lot. However, that is outside the scope of the Bill.
I do not expect the Parliamentary Secretary to comment on this, but it is a reasonable assumption that the Government would not have acted about the Royal Commission had not this legislation come forward, because we know that the shelves in the offices of Government Departments are littered with dusty reports of Royal Commissions on which no action has been taken. The desire of all Governments to tinker with and to improve legislation might give this Government sufficient impetus and enthusiasm to do something about this problem in far greater scope and to far greater effect than can be done by a Private Member's Bill. However, within its limitations, and while it will have provided that stimulation, this Bill will have done a great job.

2.0 p.m.

Mr. Arthur Davidson: May I again congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) on getting the Bill to Third Reading? I advise him not to be too complacent, however, because when I had the good fortune of drawing a high place in the Ballot, and my Bill achieved a much-lauded Third Reading, I had every expectation of the measure being put on the statute book. However, the then Prime Minister, without consultation with my self, decided to call a General Election, and not only was I not promoted but, alas, my Bill failed. However, it was fortunately reintroduced later by an hon. Member opposite. Perhaps my hon. Friend will take those salutary words to heart, but I do not think, whatever other fate this Bill befalls, that a General Election will supervene.
I am sure my hon. Friend would join me in thanking my hon. Friend the Member for Pontypool (Mr. Abse) for the help he has given. He always makes the task of those who follow him much easier because of his knowledge of the subjects upon which he speaks, except when he is speaking on the opposite side and he makes life almost intolerable for those who have to speak after him. On this occasion, however, I am grateful for the help he has given.
Hon. Members have leaned over back wards to point out the limited nature of the Bill and the limited number of children or parents who will be helped by its provisions. They are right to do so. I do not think I can say exactly how many children or parents will benefit by the Bill, but it clearly is a limited number. Whether it is the number suggested by the hon. Member for Exeter (Mr. Hannam), who over the years has taken a great interest in the problem of disabled children and disabled people in general and is very knowledgeable on this subject, or whether it is a marginally greater number, I would say that even if only one child receives compensation which he would otherwise not get, or even if only one parent is helped financially by the Bill its passing will be more than justified. Many measures with far more ambitious aims, much heralded and trumpeted and the subject of much debate, have achieved far less.
As has often been pointed out, the Bill does not provide a comprehensive solution to the problem of disablement of children. Indeed, it cannot do so. Even a much more ambitious Bill cannot do that. Moreover, it will be a long time before this House can say the last word on the problem of the severe and tragic

injuries and the tragic life which face disabled children.
The Bill has been brought forward after careful thought by the sponsors and in spite of the cautionary words that were spoken on Second Reading, in Committee and on Report, it is now accepted by the House and, I hope the country, as an interim measure of a limited nature pending the report of the Royal Commission on Civil Liability and Compensation for Personal Injury. It is based on the principle, which now underlines all our law of civil compensation and is the very matter which the Royal Commission is now considering, that fault must be proved. That principle is being reexamined by the Royal Commission, and to that extent the Bill will have to be re examined, not only as regards the extent to which it is based upon the necessity of proving fault and misconduct but in many other respects. It should also be said that the Royal Commission itself cannot say the last word in matters affecting disabled children since its terms of reference relate to injury suffered, roughly speaking, at the hands of another. It does not extend to injury which arises from natural causes.
I do not think it would add very much to the debate if I spoke at much greater length. There will be many people whose life will be made a little bit easier as a result of my hon. Friend's measure. That in itself is a justification for his Bill. I am sure that the whole House wishes it well and that, when it is examined in detail in the other place, the essence and principle of the Bill will be preserved.

Question put and agreed to.

Bill accordingly read the Third time and passed.

CIGARETTE SALES (GIFTCOUPONS) BILL

Order for Second Reading read.

2.7 p.m.

Mr. Laurie Pavitt: I beg to move, That the Bill be now read a Second time.
I realise that I am introducing a controversial measure, although I am, perhaps, not one of the most controversial hon. Members. I would remind the House that it is at least an all-party Bill without any political bias. I take the point made in a previous debate by the hon. Member for Southend, East (Sir S. McAdden). Those of us who come to the House on a Friday in order to introduce a Bill find some difficulty when we look around for our sponsors, but I can assure hon. Gentlemen that the sponsors for this Bill were, from the Conservative Benches, the hon. Member for Wallasey (Mrs. Chalker) and the hon. Member for Chislehurst (Mr. Sims), who have both written to me with apologies because they have constituency engagements. My third sponsor from the Conservative Benches, the hon. Member for Ealing, Acton (Sir G. Young), is almost now in his place and I was aware that he would be here to support me.
My problem with the sponsors from the Liberal Benches is that they come from far away—the hon. Member for Roxburgh, Selkirk and Peebles (Mr. Steel) and the hon. Member for the Isle of Ely (Mr. Freud). My other sponsors are the hon. Lady the Member for Moray and Nair (Mrs. Ewing), from the Scottish National Party, and the hon. Member for Armagh (Mr. McCusker) from the Ulster Unionists. I am sorry that I was not able to get a Welsh nationalist—there are only three of them and I did not see them on the day that I put in the Bill.
The purpose of the Bill is to take at least one step towards action against the holocaust of early and preventable deaths caused by cigarette smoking. The word "holocaust" is not mine, but that of the late Lord Rosenheim who was at the time when he used it the President of the Royal College of Physicians and chairman of the committee which produced the report which came out in 1971. He was one of the most distinguished physicians this country has ever had. He

was also chairman of the World Health Organisation research committee. The late Lord Rosenheim said:
Cigarette smoking can have three major consequences: cancer of the bronchus, coronary artery disease, chronic bronchitis and emphysema. Each is a tragedy in that it attacks relatively young adults and leads to tremendous morbidity, loss of work and loss of life".
I hope that hon. Members will regard the Bill in the same way that I do—from the standpoint of health. When we discuss this subject in the House, I am always in some difficulty about emotional attitudes to whether smoking is a moral good or a moral bad. In my view, it is neither. It is a habit which people contract, and in discussing the subject in the country I find that there is always a tendency for people to want to argue about the issue dealt with in my Bill on that sort of basis.
People who smoke often feel a little guilty, believing that they must defend the fact that they are smokers and must find excuses for it. People who have given up smoking have a priggish attitude to it, saying "Look how strong willed I am; I have given up smoking." Neither view is germane to the Bill. I am not anti-smoking. From my point of view, if it were possible to assure me that there were no health consequences from smoking, the citizens of this country could become like smoked kippers from Yarmouth.
Since becoming a Member of the House, I have made health care and health treatment my special interest. In my view, in the National Health Service the greatest measure of agreement which is to be found among doctors and those engaged in the care or receipt of service is that we want prevention rather than treatment in the service.
In spite of that, although we can agree on the objective, it is difficult to take practical steps to secure it. The distinguished chief medical officer of health who retired two years ago, Sir George Godber, said that in terms of preventive medicine the greatest single step that could be taken would be to diminish the number of people who smoked cigarettes. His view was confirmed in the World Health Organisation report which was published last year and from which I quote:
Smoking-related diseases are such important causes of disability and premature death


…that the control of cigarette smoking could do more to prolong life and improve health …than any other single action in the whole field of preventive medicine".
The purpose of the Bill is to take a small step in that direction, to introduce control of the kind advocated by the World Health Organisation.
I had the privilege of serving on the Medical Research Council for three years during which time we were much concerned with questions of that kind. The same opinion was expressed in the report of a working party of the Council, which stated:
That smoking currently posed the major public health problem in western society".
There can be controversy about all academic issues. In The Times today, Professor Hans Eysenck put forward a view about the question of smoking which my Bill does not specifically cover, although Clause I relates to a point to which I wish to refer later about the incidence of the tar content and nicotine content in cigarettes. The view put forward by Professor Eysenck is not new. He put it forward nine years ago and it was then well and truly refuted by eminent members of the Royal College of Physicians. In considering the evidence —and one should consider the evidence from all sources—it should be noted that, according to the report in The Times, Professor Eysenck was addressing a conference sponsored by the tobacco industry. Some of his research has been sponsored by the tobacco industry.
My Bill seeks to redress the balance of persuasion. Two sources of persuasion are at work and have been at work since the first Bradford Hill-Richard Doll report of, I think, 1951. There is the effort by the Government, through the Health Education Council, to persuade people either not to smoke or to smoke less. On that we spend less than £500,000. On the other side of the argument, the tobacco industry is trying to persuade people to buy cigarettes. People buy cigarettes not to put in a glass case but to smoke. About £70 million is spent on sales promotion. Therefore, this is very much a matter of a persuasive argument between David and Goliath.
There have been continual reports from sources of official medical opinion such as the Royal College of Physicians, the last being in 1971. After that report

had made an impact through television and other branches of the media, 130,500 million cigarettes were sold in 1972. In the past 10 years, cigarette sales have increased by 13·36 per cent. Of the £70 million spent on promoting the sale of cigarettes, about £50 million—in other words, the major part—goes on the gift coupon scheme. Therefore, the Bill is the greatest single measure for redressing the imbalance between the two sources of persuasion to which the public are subjected.
I remind the House again of the size of the problem. During today's debate at least 60 people will have died who would still have been alive had they not smoked —one every six minutes. The annual report of the Chief Medical Officer of Health of the Department of Health states:
A third of the total mortality is due to lung cancer and there are 80,000 premature deaths probably occurring in England, and in the whole of the United Kingdom probably nearer 100,000".
It goes on to say that a large number of man hours are lost. Last year just over 5 million days were lost in production. Industrial stoppages are one of the economic problems about which we are all concerned, but 38·5 million days were lost through chronic bronchitis, eight times more. Much of the blame for this can be laid at the door of cigarette smoking.
The House debated this matter on 16th January. Although it has been made well aware of the overall slaughter of people in this way, a new factor to which I should like hon. Members to pay attention is that, although in the past few years the death rate among men from these causes has been static, the death rate among women has been rising at the rate of 15 per cent. per annum.
When I was a boy we used to whisper the words "TB" because it was a very unacceptable illness. A good deal of fear and psychological pressure resulted from the thought that one might have TB, and it was almost a social disgrace. Nowadays perhaps the biggest fear among women is the fear of cancer, and of all the cancers the one which causes them the gravest concern is probably cancer of the breast.
However, unfortunately, cancer of the breast mortality increased last year by 40 per cent.—incidentally, more people are


being cured of it than die from it—and deaths from lung cancer among women increased by 188 per cent.
Recently, Professor Fletcher, of the Royal Post-Graduate Medical School, said:
Women who smoke run a greater chance of dying from lung cancer than from breast cancer. In the last 20 years lung cancer has trebled.
To emphasise this point, I quote again from the World Health Organisation's report:
In women, whose cigarette consumption has been rising rapidly over the last 30 years, lung cancer mortality continues to rise as cohorts of women who have smoked heavily replace earlier lower-smoking cohorts in the cancer-prone age.
I know that the House wearies of figures and statistics, so I shall now, as it were, put a little human body round the figures by telling hon. Members of what happened to one of my constituents, living in Harlesden. He started smoking at the age of 14. He was a lorry driver, and at 34 years of age he was admitted to my local hospital—which I share with the hon. Member for Acton and his constituents—the Central Middlesex Hospital. My constituent had a cough, and the cough showed a slight trace of blood in the sputum. Lung cancer was diagnosed, and he was sent to the Chest Hospital for an operation, but the lung cancer proved to be inoperable and three months later, at the age of 34, he died.
The tragedy fell on the family, for he had six children under 10 years of age. The wife broke down mentally as a result of the strain of her husband's death and the responsibility falling on her, and shortly afterwards she was admitted to another hospital, which also I share with the hon. Member for Acton and his constituents, the mental hospital for our area. The inevitable consequence was that her six children had to come into the care of the local authority.
I tell that story to show where the responsibilities lie. On the one hand, we have individual responsibility in these matters, but it goes further than individual responsibility, as that case well illustrates by the way the family took the brunt of the problem. In addition, the community, ratepayers and taxpayers, had to meet a heavy cost.
That case, among many others, stands in the records of Dr. Keith Ball, the specialist consultant in my hospital, and he extends an invitation to hon. Members to go at any time to his chest ward to see the results of the chest diseases which can develop. I am pleased to say that two hon. Members have already taken up that invitation, my hon. Friend the Member for Ealing, North (Mr. Molloy) and the hon. Member for Acton. Both have visited the Central Middlesex Hospital and seen the facts for themselves.
The significant feature of that tragedy, however, is that the man had started smoking at the age of 14. I am sure that I carry the House with me when I say that the main effort should be directed at stopping youngsters from getting caught, and my Bill to deal with gift coupons is directly aimed at the under–25s because I believe that it is probably in this group that gift coupons have the greatest effect.
I believe that Mark Twain once said that it was very easy to give up smoking, and he did it at least two or three times a week. This is part of the problem. I do not know any smoker who has not at some time or other said that he would give up smoking or cut it down. But the impact of the gift coupon system is that a person says to himself "Yes, I shall do it when I have collected the next 200 in order to get something I have been waiting for". Indeed, some of the companies, when sending a gift, add as a little bonus, as it were, a few more coupons to start the smoker on the way again to the next gift.
I think here of the sort of family situation with which many people will be familiar. An aunt with a great love for her nephews spends a lot of time collecting coupons to obtain all manner of toys which are advertised, for example, in such remarkable catalogues as the one I have here, which must cost at least about £2 a copy to produce and which presents a most attractive incentive.
I know that the House prefers voluntary agreement to legislation. We all do. I bring this Bill forward, however, because of the history of negotiations to secure a voluntary agreement, which started 10 years ago. I quote here from what was said in 1967 by the then Minister of Health, Mr. Kenneth Robinson.


He had been negotiating to achieve a voluntary agreement and he said:
Two of the firms would agree to the ending of coupon schemes and to the limitation of mass media advertising expenditure on a basis agreed between them. The third firm would not agree to the ending of coupon schemes …After more than a year of negotiations, it is now clear that no further progress is possible by voluntary agreement.…In view of this, the Government have decided to introduce legislation in due course to take powers to ban coupon gift schemes in relation to cigarettes".—[Official Report, 23rd October 1967; Vol. 751, c. 1328.]
Thus, in 1967 Her Majesty's Government made a firm declaration. I hope that the present Government will consider that I am helping them, nearly 10 years later, in the task of redeeming the pledge then given. It is that pledge which I seek to redeem.
I pay tribute here to one of the companies, Messrs. Gallaher, which was one of the two prepared to reach a voluntary agreement on gift coupons. This company was kind enough to let me have a copy of its market research report at that time giving the reasons why it felt that it would be right then to stop the gift coupon promotion scheme. I quote from the conclusion:
The majority of the research information we have is consistent with the hypothesis that coupons tend to increase the number of cigarette smokers and the rate at which they smoke".
In the summary of that excellent report, it is said that total sales of cigarettes have continued to increase in spite of the report by the Royal College of Physicians, and it adds:
…The only other possible cause of which we are aware is the very great increase in sales of coupon cigarettes. The proportion of adults who smoke has tended to increase …coupons seem a likely explanation…Smokers themselves tend to feel that on changing to a coupon brand they begin to smoke more, and vice versa.
I am grateful to the Gallaher company for its help, and I am grateful also to the whole of the tobacco industry for showing me the results of the research which it does. The tobacco industry spends quite a lot of money—I give full credit for it —on research in several places in this country seeking to find a carcinogen-free cigarette.
However, I have here also the report of the Imperial Tobacco Group—this is its second edition—on cigarette coupon

schemes and cigarette advertising. It is fair to say that this report gives conclusions precisely opposite to those reached by Messrs. Gallaher. The introduction to the report reads:
We can, we think, justly claim to know more about the industry than anyone else and we have sound commercial reasons "—
I repeat those words, sound commercial reasons"—
for endeavouring always to seek the truth.
The report points out that to eliminate coupons would enable a smoker to have a reduction of several pence on the price of each packet. What it does not say is that the £50 million spent on coupon schemes is an allowable expense for tax purposes, being set off against the amount of tax paid, so that the non-smoking taxpayer is subsidising the smoking taxpayers.
This is a simple Bill to give effect to the purpose which I have outlined. Clause 1 would abolish the giving of gift coupons with cigarettes. It does not apply to other tobacco products, and this is quite deliberate because there is some evidence that other forms of smoking, though never entirely harmless, carry considerably less risk. For example, between 1951 and 1965, half the British doctors stopped smoking cigarettes, and research showed a plumetting in the death rate from diseases of the lung. I am sure that many of them did not stop smoking altogether but switched to other forms of smoking.
A debatable point on Clause 1 is whether the ban on gift coupons should apply to all cigarettes or only to brands with a high or middle tar content. There is a good deal to be said for the latter approach, and I shall listen with great interest to what is said from the Front Bench on this matter. But when I considered it when drawing up the Bill I deemed it best to make the clause quite simple at this stage, leaving it open to the possibility of amendment when hon. Members have had a better chance to look at it, to study the pros and cons, and to see whether they wish to amend it so that the measure does not apply to all cigarettes, but just to those in regard to which there is a general understanding that the greatest health hazard occurs.
Clause 2 gives the Minister power to make regulations, and the clause is necessary to ensure compliance with the


Act. I considered the possibility at this point of adding something on arbitration, but was advised that this would create difficulty in the context of a criminal offence, which should only be settled by the courts. But any orders a Minister cared to introduce would have the power to clarify areas of doubt, particularly if any court had interpreted the Act differently from the manner intended.
Clause 3 provides a definition of what constitutes a gift coupon. I make it clear beyond peradventure that this does not affect cigarette cards of film stars, racing motors, footballers, and so on, going into the packet. None of us would wish to deny this generation the pleasure that my generation had in collecting that kind of thing. Although it is arguable whether it helps in sales promotion, I do not think that it is one of the priorities with which the House should be concerned.
In Clause 3 there is also an expressed exemption for trading stamps, with the insertion of a reference to the Trading Stamp Act 1964.
What the Bill does not do is to interfere with anyone's right to choose to smoke, to smoke what he likes and as much as he likes. Nor does it introduce any form of prohibition, because I believe that prohibition is usually counter productive of what the prohibitors would like to have.
The Bill proposes no change in regard to matters such as advertising. There would still be an imbalance, with £20 million spent on persuading people to smoke and only £500,000 spent by the Health Education Council in persuading people not to smoke. The Bill proposes no change in health warnings on cigarette packets.
I welcome the appointment of my hon. Friend the Member for Waltham Forest (Mr. Deakins) to the Front Bench, and congratulate him on his appointment. I know that he has been interested in this question in the past, and I very well recall two Questions that he put to the previous Administration.
the Secretary of State for Social Services (1) if, in his Department's anti-smoking campaign he will ensure that the fact that tobacco is a drug will be emphasised (2) if in his Department's anti-tobacco smoking campaign he will ensure that the fact of the addictive nature of

tobacco is emphasised."—[Official Report, 15th February 1971; Vol. 811, c. 329.]
I therefore specially welcome the appointment of my hon. Friend to the Front Bench but, nevertheless, I assure him that I quite understand—as I have only just resigned from the Front Bench—that his job today is to speak for the Government.

The Under-Secretary of State, Department of Health and Social Security (Mr. Eric Deakins): If my hon. Friend had carried his researches a little further back he would have found that in July 1970, after the June 1970 victory of the Conservative party, I made my maiden speech on a Bill connected with the misuse of drugs and drew some unflattering analogies between the smoking of marijuana and the smoking of tobacco.

Mr. Pavitt: That is an even further reason for my welcoming the fact that the Government have had the good sense to put my hon. Friend on the Front Bench, and the even better sense to have him on the Front Bench today to reply to the debate. I assure him once again that I quite understand that he must now speak in his official capacity, and I shall listen with considerable care to his statement of the Government's position in these matters.
In commending the Bill to the House. I am well aware that I do so against a very hard materialist background and that it would be foolish to ignore the realities of economic and commercial pressures. I am aware that my small Bill may be unacceptable to very powerful financial interests.
In saying that I am not trying to indict the tobacco companies as devils incarnate. They are controlled by ordinary human beings who are seeking to do a job of work in their chosen field and to operate successfully in it. But I ask the House—as the House was asked in considering the previous measure today—to have compassion. In this case I hope the House will have compassion for those gasping for breath with chronic emphysema, for the families of the bereaved, and especially for the health of our children and grandchildren.

2.36 p.m.

Sir Stephen McAdden: The hon. Member for Brent, South (Mr. Pavitt) rightly anticipated what I


was intending to raise immediately, as I did on the previous Bill. I refer to the absence from the House of the sponsors of the Bill. I know that the hon. Member for Brent, South is here, as is my hon. Friend the Member for Esher (Mr. Mather), but where are all the others? It is all very well to say that there are letters of apology, but this has always been the case. People write to say that they have married a wife or bought a farm, and so on. The reasons change with time.
Nothing that I say detracts in any way from my belief that the hon. Member for Brent, South is absolutely sincere in what he says. He has always been an ardent advocate of his own position. Sincerity is a great tribute to a man's faith and to a man's heart, but it is not necessarily a tribute to his head. Therefore, while I know that the hon. Gentleman is sincere in his approach, I believe that his approach is a wrong one.
I congratulate the hon. Gentleman on being successful in the Ballot. I do not congratulate him on the Bill that he has introduced. I feel that much more useful legislation could have been introduced in the time available.

Mr. Pavitt: I was not successful in the Ballot. I presented the Bill.

Sir S. McAdden: I readily accept the hon. Gentleman's correction. I congratulate him on having the opportunity to put his Bill before the House, at the same time reiterating that I deplore the absence of the sponsors. It was pointed out that six people will die as a consequence of smoking while the debate takes place. The sponsors may have thought that they had better not come here in case they were among the six.
I have taken an interest in this subject ever since the late Sir Gerald Nabarro introduced a Bill on the subject. For some inexplicable reason I—one of the heaviest smokers in the House—was appointed to the Chair of that Committee. I listened for many hours to the accounts of the tribulations that would fall on heavy smokers, but as Chairman I was not in a position to say a word.
I noted the hon. Gentleman's remarks on the evil effects of cigarette smoking, which tend to attack in the main, he said, relatively young adults. Whatever

might be urged against me, no one could say that I am a relatively young adult.

Mr. Eric Ogden: In heart.

Sir S. McAdden: That is very kind of the hon. Gentleman. I hope I am not tempting providence by saying that I am a quite heavy smoker of cigarettes. But I do not think it is part of the duty of Parliament to spend its time trying to save fools from their folly. If people are stupid enough to continue to smoke, as I am, in spite of all the warnings about the consequences, why on earth should the time of the House be devoted to trying to stop them receiving gift coupons with their cigarettes if they wish to do so? It is not compulsory for them to buy packets of cigarettes containing gift coupons. They can buy brands with or without gift coupons. But if they choose to have gift coupons, why should they not do so?
Other things are harmful in addition to cigarettes. This is the first step upon a dangerous road. It is recognised that the excessive consumption of alcohol is harmful. Shall we next Friday, perhaps, have a Bill seeking to prevent the use of Green Shield stamps in stores which sell alcohol? There is no logical reason why that should not be the next step along the road. Parliamentary time should not be taken up in arguing that people who want to buy expensive cigarettes—which cost an average 2½p each—out of their taxed income should have obstacles put in their way.
The hon. Member for Brent, South referred to preventive medicine and breast cancer. It is a pity that the National Health Service is not more active in promoting preventive medicine. It leaves a great deal of preventive work to charities and private individuals. My wife is president of a fund in the North Thamesside area which has been successful in raising over £100,000 from private individuals, who take part in coffee mornings and so on, to provide a unit for the early detection of breast cancer which the National Health Service is unwilling to provide. The National Health Service has a long way to go in preventive medicine. The continued supply of gift coupons with packets of cigarettes will not make much difference. There is much more useful and profitable work which needs to be done.
The hon. Gentleman seemed to look with disfavour at the report which appeared in The Times today because it is of a conference sponsored by the tobacco industry. Why? Does the hon. Gentleman consider that professional men who are invited to conferences, and professional men who conduct research, are such deplorable individuals that they will be swayed by the fact that the sponsor of the conference is a tobacco company? Does he suggest that the conclusions from research conducted by the tobacco companies are perverted and based upon the opinion of the sponsoring industry rather than on genuine research which should be encouraged?
The hon. Gentleman has in part wasted his opportunity. A much more useful Bill could have been introduced. The Bill is designed with the best intentions and with the innate sense of responsibility which exists among some hon. Members for saving fools from their folly, but that is not the job of Parliament. If people are rash enough to spend money out of taxed income on cigarettes, it is not the job of any Nosey Parker in the House or anywhere else to try to prevent them doing so.
Although the hon. Gentleman produced a large number of statistics, he produced no relevant statistics to prove that gift coupons in cigarette packets had led to an enormous increase in sales. Nor did he produce statistics to prove that because of gift coupons more people are smoking. Therefore, because of the lack of relevant evidence and the absence of sponsors to support the hon. Gentleman, I suggest that the House should refuse to give the Bill a Second Reading until evidence has been produced which is capable of convincing the House.

2.44 p.m.

Mr. David Weitzman: I congratulate my hon. Friend the Member for Brent, South (Mr. Pavitt) on introducing the Bill and on his extremely detailed speech which was drawn from many sources and should convince the House. I am glad that he limited the Bill to cigarettes. I must declare an interest. Since the age of 17 I have smoked a pipe—never cigarettes. I have enjoyed smoking a pipe for about 60 years and I am glad

that the Bill imposes no prohibition on the smoking of a pipe. Some of my hon. Friends smoke cigars and my hon. Friend is a very good fellow for not having interfered with the smoking of cigars.
The hon. Member for Southend, East (Sir S. McAdden) asked why we should interfere with someone who is stupid enough to smoke. The Bill is a very modest measure which does not interfere with people who are stupid enough to smoke. It tries to stop the inducement to smoke given by the tobacco companies. I recollect a constituent of mine telling me that he used to smoke Black Cat cigarettes because coupons were given away with them in return for which he could obtain silk stockings for his wife. He said that he almost smoked himself to death to provide his wife with enough silk stockings.
There is always a difficulty in putting forward any proposition which interferes with freedom of choice, but if a product is harmful to others, or if a young person can be discouraged from contracting a bad habit, that must be taken into account.
We must not lose sight of the fact that a considerable body of medical opinion takes the opposite view to that put forward by my hon. Friend. We must remember the psychological effect of smoking. What can be better after a hard day's work, or perhaps after a day in the House of Commons listening to boring speeches, than going home, sitting back and enjoying a pipe or possibly a cigarette? We should seek a balance between restraint and allowing an individual to do what he wants to do.
There is considerable medical evidence on both sides of the argument. My hon. Friend referred to the danger of lung cancer, heart disease and chronic bronchitis. We already impose a certain restraint by the compulsory display of warnings on cigarette packets. Voluntary measures are also taken in many theatres and cinemas, and restraints are imposed in railway carriages.
I understand that in Norway on 1st July 1975 an Act came into effect which totally banned all advertising of tobacco products. I do not know what the hon. Member for Southend, East would say if a measure of that kind were introduced


here. In addition, in Norway a health warning must be displayed on all packets of cigarette tobacco and cigarette papers.
In Sweden a report envisaged a long-term programme covering a 25-year period aimed at bringing up a generation of children in which smoking was the exception rather than the rule. According to the report, children born after 1975 will be the first non-smoking generation.
The French Government are introducing stringent legislation on smoking, much of which concerns advertising.
In Italy in 1955 a ban was imposed on advertising all tobacco products introduced into that country. It was extended but apparently had little effect. So on 1st January this year new restrictions were imposed on smoking in public places.
These are examples of what other countries are doing. My hon. Friend the Member for Brent, South has introduced an extremely modest measure—

Mr. Ogden: My hon. Friend has used the phrase "modest measure" three times. Surely he has read Clause 1(2)(a) which says that on conviction on indictment, for the offence of putting cigarette coupons in packets or attaching them thereto, a person is liable to a fine of any amount, or sentence of up to two years in prison.
Does he describe this as a modest measure when the penalty is any amount of fine, or two years in prison? Could any lawyer justify that?

Mr. Weitzman: I said and I repeat that my hon. Friend has introduced a modest measure. When my hon. Friend the Member for Liverpool, West Derby (Mr. Ogden) becomes a member of the Standing Committee on this Bill he can deal with the provision in Clause I and try to reduce the punishment.

Mr. Ogden: Make it 20 years.

Mr. Weitzman: This is a modest measure because it is restricted to gift coupons. The hon. Member for West Derby will still be allowed to have his cigarettes with cards of football teams—Liverpool and Everton and all that sort of thing. They will not be prohibited under the Bill, and the company which produces them will not run the risk of

going to prison or suffering a penalty. If he thinks that the penalty in subsection (2) is too much, and there is some justification for that view, we can consider this issue carefully in Committee.
The people who will be charged with the offences will be companies, and corn-panics cannot be sent to prison. Sometimes the directors can, but this Bill does not contain the usual clause which makes directors liable. If my hon. Friend thinks a tobacco company in Liverpool can spend 20 years or any period in prison he is under a delusion.

Mr. Pavitt: Perhaps my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) will explain to my hon. Friend the Member for Liverpool, West Derby (Mr. Ogden) the difference between indictment and summary conviction.

Mr. Weitzman: I am sure that my hon. Friend the Member for West Derby understands the difference. I have no doubt that he has followed certain proceedings relating to certain persons with whom he may be familiar where the difference between summary conviction and indictment is shown.
The Bill does not define cigarettes and I hope that it will not include herbal cigarettes which some people smoke. do not think that we would want to condemn them to any restriction.
We must preserve an extremely careful balance. I accept that there should be as little restraint as possible on the individual, and if he chooses to smoke, we should let him. The hon. Member for Southend, East called such people stupid. I have been stupid for 60 years. We can at least preserve the balance.
We should have as little restraint as possible, but the restraint imposed by the Bill is one of discouraging tobacco companies to adopt measures to induce people to smoke if those people do not wish to. This is a sensible point of view, and to that extent I support the measure, in spite of the penalties envisaged.

2.56 p.m.

Sir George Young: I am proud to support the Bill introduced by my geographical, if not political, neighbour, the hon. Member for Brent, South (Mr. Pavitt), whose work on the all-party group of Action on Smoking


and Health is to be commended. The House debated this matter at length on 16th January on a motion introduced by the hon. Member for Ormskirk (Mr. Kilroy-Silk), when my hon. Friend the Member for Reading, South (Dr. Vaughan) outlined the views of the Conservative Party on tobacco.
I shall deal with the speech of my hon. Friend the Member for Southend, East (Sir S. McAdden), whose judgment I respect on all matters other than smoking. His thesis seemed to be that it was a consolation for many of us who spoke in that debate that the Chancellor should have put up the tax on tobacco in the Budget. The delegation that the Chancellor had from ASH was the only one he was pleased to see, as we were actually urging him to put up taxation. I hope he will continue with this trend in future Budgets.
My hon. Friend said that it is no part of the functions of this House to protect fools from their folly. I disagree. There is a general obligation upon us to prevent unnecessary suffering and the diversion of National Health Service resources to illnesses which could otherwise be prevented. The House has taken this view on crash helmets and on safety belts. It is perfectly consistent for us to support the Bill without in any way prejudicing views we have taken on other subjects. I see no conflict with my party's philosophy in supporting the Bill.
Total expenditure on tobacco promotion by the tobacco companies was £70 million, of which gift coupons took over £50 million. What we are debating is therefore more important than whether tobacco advertising should be restricted. In 1963 the amount spent on coupons was £8·8 million. It has risen to the current level of over £50 million. One reason for this is the ban on television advertising.
All voluntary attempts to curb coupon schemes are bound to fail, either because the tobacco manufacturers ask for conditions to which the Government cannot yield or because of competitive stresses between each other.
The tobacco companies have always claimed that there is a difference between coupon trading and advertising. A note on this matters appeared in the 1971

report of the Royal College of Physicians, which gave the manufacturers' view:
The cost of coupon trading is not under the control of the manufacturers but is dictated by the free choice made by the smoker to purchase a brand containing a coupon to be redeemed at a later date for goods or cash. The increase in recent years in the total monetary exchange value of coupons simply reflects the increasing popularity of coupon brands.
That seems a glib and superficial argument. I believe that the coupon brands have increased in sales because of the coupons, and that is the view of the manufacturers and advertisers. Other wise, they would not wish to spend promotion money in that way.
The current practice is also a breach of the code drawn up by the Advertising Standards Authority. The current code states:
Advertisements for coupon brands, or including reduced price offers, should be so drafted as to avoid encouraging people to smoke more.
Those of us who have seen advertisements entitled 'Spot the Kensitas' Smoker' would agree that such advertisements encourage people to smoke more. Therefore, that is a breach of the code. There are some schemes which give the smoker coupons with which to start his collection. That is an incentive to smoke more, which again is a breach of the code.
Coupons encourage people to continue to smoke when they might otherwise have stopped. They might have their eyes on some particular item in the catalogue and they will continue smoking until they have enough coupons. Again, that argument goes against the code—that coupons should not encourage people to smoke more.
I should like to refer briefly to the argument put forward by the promoter of the Bill about whether coupons should be allowed for the lower tar brands. The hon. Gentleman is right to exclude them from the Bill. It might be seen to be giving approval to cigarettes with a lower tar yield, but it would be wrong to sanction or approve any form of cigarettes.
The average smoker who contracts lung cancer will have smoked about a quarter of a million cigarettes. For these he will have collected about 62,500 coupons—about enough for a stereo and radio system from the "John Player Family Catalogue" at 66,000 coupons.
A husband and wife both contracting lung cancer could get a washing machine for 115,00 coupons. A family of five smoking for 40 years could get a Safety First Skipper 12 family dinghy for 289,500 coupons. I wonder whether the price being paid by that family for a relatively modest consumer durable is worth it. I fear that many people would have died from lung cancer before they had enough coupons to buy the goods on which they had set their hearts.
A recent Guards advertisement, which included the headline
Guards save you time and money",
lists various items, such as screwdrivers. To obtain a screwdriver, a smoker would have to buy 267 packs at a total cost of £89·43. That is not a sacrifice which any one ought to be asked to pay.
One of the problems about the debate is that we do not have sufficient evidence of the relationship between coupon schemes and cigarette consumption. I believe that they are a form of promotion. It would help if the Government could shed some light on the subject. Anything which can cut down premature deaths from smoking is worth supporting.
The Bill, as has been said, is a modest measure. It would be easy to implement and would involve no public expenditure. It presents no practical problems for the manufacturers. Indeed, it might enable them to cut their prices, which presumably they would wish to do.
For those of us who have constituents who smoke, there is a political problem in taking a hostile attitude to smokers. Whatever the attitude of smokers, however, I know of no one who wishes his own children to smoke.
The merit of the Bill is that it is the first step in, I hope, a long campaign to cut down smoking by young children and those who are not of an age to appreciate the risks involved. I hope that the House will give this modest measure a Second Reading and that the Government will indicate their support and facilitate its arrival on the statute book as soon as possible.

3.5 p.m.

Mr. Eric Ogden: My hon. Friend the Member for Brent, South (Mr. Pavitt) emphasised in his opening remarks that this is an all-

party Bill. As the debate has progressed that point has been underlined. The normal alliances or oppositions across the Chamber are conspicuously absent today.
My hon. Friend the Member for Brent, South, with whom I normally agree on very many things, has been agreeing with staunch Opposition Members. It seems that the hon. Member for Ealing, Acton (Sir G. Young) is in an interventionist mood whereas his hon. Friend the Member for Southend, East (Sir S. McAdden), whom I know rather better because we have both been in the Chamber rather longer than the hon. Member for Acton, is in a particularly Conservative mood.
I do not agree with the hon. Member for Southend, East that we should leave fools to their folly. When he takes the view "Do not intervene unless you have to do so", that is a true Tory philosophy. I agree rather more today with the hon. Member for Southend, East than with the hon. Member for Acton or with my hon. Friends who have spoken so far.
I am grateful to a degreee, for I smoke a pipe occasionally and do take snuff, that both snuff and pipe tobacco have been excluded from the consequences of the Bill. However, I have no financial concern with tobacco industry. But I have a real concern about employment in tobacco company factories in Liverpool and on Merseyside. I claim some anxiety that the House should not try to make decisions for fellow citizens outside the House which those people are perfectly capable of making for themselves. We should not assume that people outside the House have less information, less evidence or less intelligence than ourselves. I do not believe in doing for other people what they are perfectly capable of doing for themselves. I disagree with the sponsor of the Bill, my hon. Friend the Member for Brent, South, and those of my hon. Friends who have spoken in its support.

Mr. Weitzman: I do not know whether my hon. Friend heard the example that I quoted of a constituent who smoked Black Cat cigarettes almost all day because his wife wanted him to get the coupons to supply her with silk stockings. Does he underrate the influence of women, especially wives, in these matters?

Mr. Ogden: A little later in the debate, if I may have a few minutes uninterrupted, I shall quote some of the remarks made by Mrs. Ogden, my wife, early this morning. Perhaps she is one example of the views that are held by women on this subject and on the Bill. My hon. and learned Friend will have to balance her comments with the other information that he has in his possession.
My hon. Friend the Member for Brent, South complimented my hon. Friend the Under-Secretary of State on the remarks that he made in a previous reincarnation about his personal view of tobacco smoking and the dangers stemming from the misuse of drugs. If we were selecting a jury I might have to object to my hon. Friend being empanelled. However, I add my congratulations on his appointment. I am in some doubt as to why the Under-Secretary of State for Social Services has been nominated, dragooned or persuaded to represent the Department of Health this afternoon if his duties are solely concerned with social services. However, I am sure that he is eminently capable of giving an honest and unbiased view of the thinking of the Government and his Department on this matter.
At one stage it seemed that my hon. Friend the Member for Brent, South was going more into the general debate that we had some months ago on the dangers of the misuse of tobacco and not concentrating too much on the Bill. I remind the House of what the Bill proposes. The Bill seeks to
Prohibit the provision of gift coupons with cigarettes sold in the United Kingdom, and for purposes connected therewith.
This is not to apply in Northern Ireland, only to part of the United Kingdom. Clause 1 reads:
It shall be an offence to provide any gift coupon with or in connection with the sale within the United Kingdom of cigarettes.
This "modest measure" as it has been called, provides penalties on conviction on indictment of a fine of any amount, or imprisonment for a term not exceeding two years. My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) says that we cannot send a company to prison for two years. This would be a most difficult operation. If this cannot be done, why put it in the Bill? Some

sort of exclusion should have been inserted.
We are being asked to judge the Bill as it is before us today not on how it might be changed in Committee. There fore, the fact that there may be fines imposed of up to £400, or indeed imprisonment of up to two years, for the heinous crime of putting a cigarette coupon inside a cigarette packet, or even attaching it thereto, because this might be an inducement, is an important matter. According to the sponsor of the Bill, it is wrong to put a cigarette coupon in a packet if that coupon is to be exchanged for a gift.

Sir George Young: How does the hon. Gentleman reconcile the libertarian view he is now taking with the authoritarian view which he took when supporting recent legislation providing for the compulsory wearing of seat belts.

Mr. Ogden: Perhaps I may deal with that aspect of the matter later. I hope that I shall not be called "authoritarian" or "libertarian" because those misleading phrases tend to set people on one side or other of the great divide. I was referring to a coupon that is inside the cigarette packet or attached to it. Whereas it appears that other forms of stamp trading are acceptable, I am the last to suggest that Green Shield stamps have any moral value, and it certainly would be wrong for my hon. Friend the Member for Brent, South to exclude Co-op stamps from the penalties simply because he is a member of the Labour and Co-operative Party. Yet I cannot see how one can separate the two inducements. Is it any different for a cigarette packet to contain cigarette cards, which are avidly hoarded by collectors and which might be an incentive to smoke more, than for it to contain stamps which will allow the acquisition of a coffee percolator, electric toaster or whatever? Surely it is a contradiction in terms to put cigarette coupons and Green Shield stamps or cigarette cards in different categories.

Mr. Pavitt: The Bill sets out my precise intentions. It relates to coupons included in the cigarette packet at the point of sale. If the Bill were to cover such things as Green Shield stamps, Co-op stamps and all the rest, it would


have to range over much wider matters. I am seeking in the Bill to deal with only one matter.

Mr. Ogden: I shall take that explanation by my hon. Friend with a pinch of snuff because I am about to deal with the purposes of the Bill.
We all know that the Bill has been put forward in good faith by my hon. Friend the Member for Brent, South and his fellow promoters, for what they no doubt believe to be a proper purpose. The purpose of the Bill is to reduce the consumption of cigarettes The fear is that cigarette smoking is a real danger to health, whereas I believe that it is the abuse of tobacco that is the danger.
I could quote statistics illustrating that cigarettes taken at the right time have probably saved more people from heart disease than otherwise would have been saved. Therefore, the danger arises from mis-use of tobacco rather than its mere use.
Assuming that the purpose of the sponsors of the Bill is right, will the remedy in the Bill reduce total consumption of cigarettes, will it increase their sale, or will this change the pattern of consumption from low to high tar content? Let us see what information we have. I have collected such information as I can. I do not have the Gallagher report, because there are no Gallagher companies on Merseyside, but I shall refer to the Imperial Tobacco report.
This is a report by Information Research Services Limited which, so far as I am aware, is an independent research organisation. It was asked to undertake certain inquiries into the effect of cigarette coupons on the total consumption of tobacco.
I received the document at my home this morning. It says:
The latest research information conducted by a national independent research company for the major British tobacco company presented in December 1975 gives the following summary of conclusions.
It seems reasonable to give this argument because it is contrary to the more popular one.
Cigarette coupons do not induce more people to smoke.
Mrs. Ogden agrees with that.

The average smoker of coupon brands consumes less weight of tobacco than smokers of non-coupon brands. Statistics show that whilst smokers of coupon brands smoke on average one or two cigarettes per day more than smokers of non-coupon brands, these are smaller than the non-coupon cigarettes so the effect is a lower tobacco consumption.
Mrs. Ogden believes that to be true.
In addition to smoking less tobacco, the smokers of coupon brands derive a benefit from a significantly lower tar delivery. The tar delivery of non-coupon brands is on average between 20 and 25 per cent. higher than that of coupon brands.
Mrs. Ogden says that that is true.
In January of this year there was at least a tacit understanding and agreement between the Department of Health and Social Security and the tobacco companies that as a result of discussions and agreement on advertising control there would be no more legislation on the sale of tobacco this year. Conversations are taking place and will continue, but it was agreed that there should be an interim period.
The Government would be the last to say what hon. Members shall propose or dispose, but the Government Front Bench should make it clear that they have such an agreement with the tobacco industry and that the Bill would be counter to that agreement.
I have already mentioned my interest in continuing employment in Merseyside inside the tobacco factories. The principle of coupon trading is accepted in one form or another and further restrictive legislation would do no good. If the proposals were carried there would be no reduction in total consumption but it would remove one of the incentives to people smoking lower tar content tobaccos who might return to those with a higher tar content.
I have done some independent research of my own. I have been asking people that I have met over the past two weeks for their opinion. This morning I went to the headquarters of a political party in Smith Square. Occasionally I enter the Conservative Party headquarters for information, a light chat and to discover what is going on. Guidance and encouragement they certainly need.
But this morning I did not go there. I went to Transport House. I did not see the General Secretary of the Labour Party—although I believe he is a pipe smoker—nor did I see the National


Executive Committee. I was asking for information concerning the local government elections. In a room containing 10 ladies who were working on the distribution of Labour Party literature for the municipal elections next week, I found that seven of the 10 were smoking cigarettes. That is a fact which I am reporting to the House.
Bearing in mind that the Bill was to come before the House today, I asked them what they thought of the Bill. I told them that it would prevent and prohibit the inclusion of cigarette coupons in their cigarette packets. Most of those who were smoking were using low-tar cigarette-coupon cigarettes. They said "We know all about the low tar and high tar. We are smoking these cigarettes because they are low-tar, not because there are coupons. We collect the coupons, and they are useful, but none of us has chosen a particular brand because it has or has not got coupons." The publicity about high tar and low tar had been noted.
These Labour Party supporters and workers in the Labour Party Headquarters asked me to tell the sponsors of the Bill to leave them alone. They said "Tell them we have minds of our own, that we have lived a while." One of them was ready to retire and another was just starting work. They said "We know the facts of life and of living. We know the danger of the abuse of cigarettes. We are not daft. Tell them that we are perfectly capable of listening to advice and making decisions about our own health, welfare and well-being but we do not welcome Members of Parliament deciding for us what it is our right to decide for ourselves."I have passed the message on.

Mr. Pavitt: I thank my hon. Friend very much.

Mr. Ogden: The purpose of the Bill may be laudable, but it would not result in what my hon. Friend wants. It would result in an increase in the consumption of higher-tar cigarettes. It would affect employment in my constituency. The Bill assumes that people outside the House are less intelligent than we are and cannot make decisions for themselves, something which we should recognise they are perfectly capable of doing for themselves.

3.22 p.m.

The Under-Secretary of State for Health and Social Security (Mr. Eric Deakins): I begin by assuring my hon. Friend the Member for Liverpool, West Derby (Mr. Ogden) that my new responsibilities cover health as well as social security. That is just as well in this debate, because I am trying to strike a balance, as I think hon. Members who have spoken on both sides of the debate have been trying to do.
The hon. Member for Southend, East (Sir S. McAdden) suggested that people should have the right to spend their money as they chose. That is correct, but there is a need to bear in mind the other side: that the costs of treating people who suffer from the diseases caused by smoking fall on the community as a whole. The hon. Gentleman also rightly pointed out the need for more preventive medicine, which is something we fully support. We must strike a much better balance between preventive and curative medicine.

Sir Stephen McAdden: Has the Minister thought about the catastrophic effect on the Chancellor of the Exchequer if we all stop smoking?

Mr. Deakins: I shall leave matters of taxation to my right hon. Friend and not be drawn on this occasion, although the hon. Member for Ealing, Acton (Sir G. Young) referred to the recent increases in taxation.
My hon. Friend the Member for Brent, South (Mr. Pavitt), who introduced the Bill, talked about the need to redress the imbalance between the amount spent on health education about the dangers of smoking and the amount spent by the industry as a whole. There is indeed a big imbalance which needs to be corrected. My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman), who made an interesting speech based on 60 years of pipe smoking, also felt, as did most other hon. Members who have spoken, that there was a need for balance.
My hon. Friend the Member for Brent, South has not only presented the House with a Bill designed to remove one of the potential inducements to people to smoke more than is good for their health but has given the House the opportunity to take stock of the stage the


Government have reached in their efforts to limit the hazards of smoking.
On 17th July 1974 my hon. Friend the Minister of State, Department of Health and Social Security included gift coupons in one of six proposals he put to the tobacco industry. The proposals were made with a view to securing voluntary agreement to new measures designed to bring home to the public the serious dangers to health of cigarette smoking. The proposals were the minimum which the Minister considered necessary in the interests of public health and consisted of a main proposal designed to redress the serious imbalance between expenditure on the promotion of cigarettes and education about their dangers, and a number of other proposals subsidiary to it. The industry responded to those proposals in February 1975 and has given further consideration to them subsequently.
The main proposal was that the tobacco industry should voluntarily contribute a sizeable percentage of its total expenditure on promotion towards public education about the danger to health of smoking. In February 1975 the industry rejected the proposal as being unreasonable and has not changed its views since then.
The tobacco industry was asked to abolish cigarette advertising in cinemas. In February 1975 the industry agreed to withdraw advertisements from "U" programmes, and later in the year agreed to extend this to "A" and "AA" programmes as well. Therefore, at present, cigarette advertisements still appear in cinemas but during "X" programmes only.
The Minister proposed that tighter control should be exercised over the way sponsored events were used by cigarette manufacturers to promote their products. The ban on television advertising was being circumvented by the names of brands of cigarettes being given to sponsored events or shown on racing cars. Sponsorship keeps the name of the product in the public eye and associates it with something healthy and attractive, particularly to the young. In some cases the sport has a spin-off directly aimed at children—for example, model racing cars painted with cigarette brand names and insignia. This means that the names of cigarette brands are associated in chil-

dren's minds with pleasure before they are old enough to appreciate the dangers of smoking. Although the industry has not yet agreed to withdraw insignia and brand names from racing cars, Imperial Tobacco Ltd. has agreed to do this unilaterally.
However, the industry has agreed to discuss with my right hon. Friend the Minister of State, Department of the Environment, who has responsibility for sport, a voluntary code of practice on sports sponsorship by tobacco companies acceptable to the Government, industry and sport, and to restrict the growth of expenditure on sports sponsorship.
The tobacco companies were asked to show tar group descriptions on cigarette packets and advertisements. Agreement was soon reached on showing tar yields on Press and poster advertisements within five broad groups ranging from "low" to "high". At first the industry was reluctant to include tar group descriptions on packets for practical, legal and commercial reasons but in August 1975 made arrangements for the relevant tar group to appear on cigarette packets, either on the tear tape or on the side of the packet below the health warning.
The industry was asked to include a stronger warning on packets and advertisements in a more prominent position. The industry replied, in February 1975, that the change in wording would not be difficult provided that the amount of wording was the same but that to change the position would involve a redesign of the whole packet and this would be a major, lengthy and expensive operation. The Minister wrote to the industry on 3rd March 1975 and proposed that the new warning should be
"DANGER: CIGARETTES CAUSE LUNG CANCER, BRONCHITIS, HEART DISEASE".
The industry offered to change the warning on packets and advertisements to
Warning by HM Government: Smoking is dangerous to your health.
It was not prepared to accept an unattributed warning. The view of the Independent Scientific Committee on Smoking and Health—the Hunter Committee—is being sought on an appropriate warning and attribution for the future.
At the July 1974 meeting the Minister of State said that if gift coupon schemes increased total consumption the Government would welcome their abolition. If, on the other hand, they were simply a weapon in inter-brand competition, there was a case for limiting them to brands in the two lowest tar groups to reinforce other steps being taken on tar levels.
The industry was not prepared to end gift coupon schemes, and at the February 1975 meeting it said that to limit them to the two lowest tar groups might be counter-productive, since the public might take the view that it was thought that these brands would not sell without coupons. In its letter of 5th June the Tobacco Advisory Committee agreed that the tar yield of the coupon-carrying brands in the middle-to-high tar group, which is the highest group containing coupon brands, should be reduced to middle tar. This, although welcome, was hardly a major concession since only two brands are affected. Altogether, 39 cigarette brands contain coupons.
It has been argued that coupon schemes are not a form of promotion but are simply a form of voluntary savings scheme to which the consumer contributes by paying more for his cigarettes. The fact that the tobacco companies call the catalogues of goods "gift catalogues" and that smokers refer to the goods as free gifts suggests that the consumer is encouraged to see coupons in a different light. It is possible that the manufacturers would reduce their prices if coupons were abolished, but it is quite likely that smokers choose to pay a certain price for their cigarettes, no doubt influenced by brand advertising, and would continue to pay that price with or without coupons
The discussions with the industry during 1974 and 1975 led to some modest gains. Their principal outcome, however, was a feeling on both sides, both Government and industry, that the time-honoured method of negotiation on smoking and health, of bid and rejection, counter-bid and counter-proposal, advance on some fronts and stalemate on others was no longer a sensible way of proceeding.
A new strategy was needed which would set aims that could be agreed by

both sides and which could give some stability to the industry in its future planning and to the Government in their development of health education and preventive services. The nature of this new strategy was announced by the Minister of State during the debate on 16th January last on a motion on smoking and health moved by my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk). The strategy, part statutory and part voluntary, is based on co-operation with the industry and has sufficient flexibility within it to meet changing needs.
The statutory part involves the use of the 1968 Medicines Act. The Minister stated his intention to lay an Order under Section 105(1)(b) of the Medicines Act so as to ensure that those tobacco products consisting of, or containing a substitute for, tobacco or containing an additive would need a product licence from the Government. Such a licence would be granted on advice from a statutory committee on the safety of the product, which would be established under Section 4 of the Medicines Act. Before making the Order, the Act requires that there should be consultation with interested parties, in the main the tobacco industry, the Independent Scientific Committee on Smoking and Health—the Hunter Committee—and the Medicines Commission. These consultations have been taking place and the Government hope to lay a draft Order for consideration by Parliament shortly.
Letters have been sent to the Tobacco Advisory Committee, representing tobacco manufacturers in the United Kingdom, and to the body representing the importers, the Imported Tobacco Products Advisory Council, setting out the matters for voluntary agreement. These voluntary agreements will not be static but will remain flexible to take account of new developments and new medical or scientific evidence.
The main matters for voluntary agreement are as follows: The aim is to achieve a steady reduction over the next few years in the maximum and mean yields of cigarette smoke components considered by the Hunter Committee to be a danger to health. The industry is to be asked to consider a strategy based on advice from the Hunter Committee to


reduce substantially, over a period of time, the tar level of cigarettes. Plans for the reduction of nicotine, carbon monoxide and other smoke components considered on independent medical and scientific advice from the Hunter Committee to be harmful will also be worked out in consultation with the industry.
Voluntary agreement is to be sought to the promotion and advertising of cigarettes by the industry to be directed towards those cigarettes considered on independent medical and scientific advice to be less dangerous. It is envisaged, for example, that for cigarette brands with a tar yield above a certain level coupons might be withdrawn. Subsequently all advertising could cease, followed later by the withdrawal of the product. The period over which this phased withdrawal would take place will need to be discussed fully with the industry. As I have mentioned, the industry has already agreed the modest first step of withdrawing coupons from any brands above middle tar level, but the Government are quite clear that they wish coupons to be withdrawn from all but the two lowest tar groups. If this were done, it would cover 17 brands.

Mr. Ogden: I do not wish to add to my hon. Friend's difficulties, but can he say who the Government are? There have been recent changes in the Government. Is he saying that those in charge of his Department a little while ago had this in their minds or is he saying that those now in the department have in the last fortnight gone to town on this and have made up their minds? Is he saying that there is now a departmental point of view which is neither the view of the Government nor the view of Back Benchers? Who are the Government?

Mr. Deakins: I can reassure my hon. Friend on that matter. There have been some ministerial changes in the Department of Health and Social Security. Three of the five Ministers are new to the Department, although the Secretary of State was a Minister in a previous incarnation in the 1966–70 Labour Government. The person in charge of policy in this matter is my hon. Friend the Member for Plymouth, Devonport (Dr. Owen), who is Minister of State, Department of

Health and Social Security. What I am saying has his entire agreement and blessing. My coming to the Department has made no difference. The withdrawal of coupons from all but the two lowest tar brands will go some way to satisfying my hon. Friend the Member for Brent, South, who said that there was something to be said for this approach.
I turn to the question of health warnings on packets and advertisements. On the question of a stronger health warning in a more prominent position on packets and on advertisements, the industry has indicated that it is prepared to consider a revised warning based on advice from the Hunter Committee.
I turn to the question of other information on packets and advertisements. The advice of the Hunter Committee is to be sought on what other information, beyond the tar yield group, about the product bearing on health should be made known. The question of health warnings and information about yields being included in advertisements at the point of sale is also to be discussed with the industry with a view to reaching voluntary agreement. At present, such advertisements are not required to carry such information.

Mr. Pavitt: Will my hon. Friend ask the Minister of State to discuss the matter with the British Medical Association, which has a strong view on it?

Mr. Deakins: I shall ensure that my hon. Friend the Minister of State is made aware of my hon. Friend's point; I am sure that we shall follow the advice he has given.
I turn to the question of the content of cigarette advertisements. The Government have decided to wait for a full year's experience of the effectiveness of the new code for the advertising of cigarettes which has recently been introduced by the Advertising Standards Authority. It is a very comprehensive document. It is therefore proposed that any discussions on the new advertising code should be left until the results of the new code over the next 12 months can be judged. I am sure that the industry will note what the hon. Member for Ealing, Acton said about the advertising of coupon cigarettes.
My hon. Friend the Minister of State, Department of Health and Social Security stated in the House on 16th January:
I have made it quite clear to the industry that if progress through voluntary agreement, when judged in the light of the reports I have promised from the Government and from the independent medical and scientific committee, is thought to be insufficient to protect the public from the risks to health from smoking, the further statutory provisions of the Medicines Act which are open to us will be applied to the whole range of tobacco products."—[Official Report, 16th January 1976; Vol. 903, c. 814.]
The Medicines Act would therefore cover the proposals in the Bill relating to tobacco coupons.
However, the Government, while recognising the aims behind the Bill, must inform the House that it would not fit within the voluntary strategy they are currently pursuing which the industry has agreed and over which they are determined to move as fast as it reasonably can because of the serious health aspects of the problem. The Government therefore urge my hon. Friend the Member for Brent, South to withdraw his Bill in the light of my statement, of the strategy being followed by the Government and also of the progress which has been made so far with the strategy.
I conclude by congratulating my hon. Friend the Member for Brent, South on ensuring that the subject of smoking and health is once more debated in the House. It is a matter of serious concern, and we are grateful to him for the opportunity he has afforded the Government to give the House an up-to-date account of the progress being made.

3.39 p.m.

Mr. Michael English: I understand from my hon. Friend the Member for Brent, South (Mr. Pavitt) that it may be his intention to try to catch your eye, Mr. Deputy Speaker, to do exactly what my hon. Friend the Under-Secretary of State has suggested he should do. I hope to afford him the opportunity of doing that just before the conclusion of the debate.
My hon. Friend the Member for Brent, South has rather stolen my thunder. He is such a nice man anyway, and he is undoubtedly so completely sincere, especially on this subject and on health in general, that when he whispers in my

ear before I am about to be severe on him that he proposes to withdraw the Bill, I find it difficult to be as nasty to him as I intended to be. But it is a Bill which begins with a rather forbidding word. It is a Bill to "prohibit". That is the very first word of the Long Title.
I am not sure that I wholly understand the peculiarities of human morality at any time in history, still less today. Earlier today we dealt with a Bill which gives rights to an unborn child. A few years ago we dealt with a Bill which took away the right of an unborn child to survive to birth, whereas in previous years exactly the opposite was the case —it had the right to survive to birth but one could damage it as much as one liked. Moreover, we had an interesting event quite recently when the Home Secretary said that in future he would allow people in gaol to commit suicide if they wished to do so, which in fact he did.
I know that my hon. Friend would not advance the extreme case that every cigarette smoker was ipso facto a person of suicidal intent. He will be the first to admit that that is not so, since only some people die as a result of cigarette smoking. That being so, why does my hon. Friend wish to prohibit gift coupon schemes? The House well knows that it is his declared aim, for the best of motives, to prohibit the sale of cigarettes. But the consistency of this sort of action is not obvious to me.
Both in this case and in the case of seat belts, to which reference has already been made, there comes a point at which one wonders why some of the nicest people one knows are the most authoritarian in seeking to prohibit for all persons conduct the results of which affect only themselves. I do not even know whether it is possible. I do not believe that Governments or legislatures can sit on high and prohibit all possible ways in which human beings can commit folly. Even if it were possible, I should seriously doubt that it was desirable.
I am sure that my hon. Friend will say "Yes" to that but go on to say that these people not only injure themselves but that they cost the community a lot of money through the National Health Service. I suppose that it is probably true that even the literally intentional


suicide to which I referred cost some medical time and effort in attendance upon him in gaol during the course of that rather sad event. The argument is not as simple as that. One cannot simply say that we should not waste taxpayers' money.
I suppose that I ought to declare all sorts of interests in this subject. In the first place, like the hon. Member for Southend, East (Sir S. McAdden), another member of the Chairmen's Panel, I am a heavy smoker and, like him, I am sometimes stuck in a Committee Room unable to smoke. Moreover, I am a heavy smoker of a high tar cigarette, made, I hasten to add, in my constituency. I have a packet here which I can show to my hon. Friend. Moreover—this is a matter of some importance—about 6,000 people in my constituency are engaged in the manufacture of tobacco products. Many of those products, including the cigarette which I smoke, do not carry gift coupons because among other reasons, as the Minister said, the tobacco companies are not encouraging the sale of high tar cigarettes by gift coupons.
What I object to in a Bill of this kind is not the undoubtedly genuine high motives of such Members as my hon. Friend but the absence of so many other considerations. This is true not only of my hon. Friend's Bill but of others. To start with, if one prohibits advertising, gift coupons or the like, either one achieves the desired effect of reducing the sale of cigarettes or one does not. There is no evidence whatsoever that the object has been achieved. The sales of cigarettes fluctuate, but they fluctuate much more in proportion to the price to the consumer, as a result of the actions of, say, a Chancellor of the Exchequer. Sales of cigarettes go up as the real value of taxation falls. A Chancellor of the Exchequer increases the tax; sales drop, and then they start slowly to rise again as inflation nullifies the effect of the rise in taxation.
There is no evidence—indeed, there is considerable evidence to the contrary—that such things as gift coupons or the various methods of advertising have any effect on the sales of cigarettes in total, though that is presumably what my hon. Friend is worried about. Advertising, gift coupons and so on only have an effect on

the sales of particular brands of cigarettes. My hon. Friend will be well aware, as will other hon. Members, of the rise over recent years in, say, the sales of Players No. 6 or Embassy cigarettes because they contain gift coupons which are popular. They have always been popular, ever since the days before the war when cigarette packets contained little cigarette cards and children collected them from their father's packets of cigarettes.
If there is is no effect on the total sales, why does my hon. Friend wish to prohibit not only advertising but the use of gift coupons? I have asked my hon. Friend privately in times past about this question, and he has been courteous enough to take me to meetings of his society, ASH. The members have explained to me that there real object is to make the smoking of cigarettes seem to be a nasty thing to do. Their object is to try to persuade people that they should not smoke in public but go, presumably, into somewhere such as a public lavatory in order to have a quiet smoke, They should do it in a private place, as if it were the sort of thing that is not done in a public place. This is, as I understand it, their object.
It seems to me that this, too, is misconceived. It is misconceived because it does not do anything about the real problem. I asked Sir George Godber, a great medical friend of my hon. Friend, why the real problem is not being tackled. Surely the real problem with cigarettes, if there is one, is one of addiction. There is hardly any doubt that nicotine and the allied substances in cigarettes are drugs of addiction—to what degree I do not know. I am not a medical man and would not presume to judge. But they are drugs of addiction, possibly to a greater extent than substances such as marijuana and probably to a lesser extent than heroin.

Mr. Pavitt: I assure my hon. Friend that the Medical Research Council and the Central Science Research Council have working parties investigating these problems at the moment. I agree that they are extremely difficult problems, but they do not fall within my Bill.

Mr. English: I agree that they are not within the Bill, but does not my hon. Friend think that he should be dealing


rather with problems of addiction? As he says, research is being done, but, as I understand from his friend Sir George Godber, who was formely at the Ministry, very little success has been achieved in all this research. I am sure my hon. Friend will agree with that. Yet he and his colleagues in ASH want to make the addict—a person who by definition, if he is an addict, is not as culpable as someone doing something to which he is not addicted—they wish to make the addict, who is less culpable, a pariah in public places.
My hon. Friend's organisation, ASH, says quite openly that people should smoke round the corner, as it were, in private, all by themselves, as if they were performing their natural functions. It literally wishes to make people into pariahs for something which is presumably, by definition, not their fault in the sense of culpability. Surely, my hon. Friend should be ascertaining whether there is sufficient research into addiction and introducing legislation to provide for more research and more funds for research into addiction. I do not know that the Medical Research Council necessarily spends its money wholly wisely.
If my hon. Friend is dealing with the problem of addiction, he should also consider that the prohibition of advertising and gift coupons will have no effect. The Americans long since tried to prohibit the sale and consumption of alcohol, which is much less addictive. It may be a psychological addiction for a few people but almost certainly it is not a physiological addiction. That attempt failed miserably. How much greater is the problem of my hon. Friend and his colleagues in trying to prohibit the advertising and promotion of a drug which in some ways is physiologically addictive. They are trying to tackle the superficial symptoms and not the basic problem, and they will fail.
But let us suppose for a moment that my hon. Friend and his colleagues succeed. I have never seen a piece of draft legislation on this subject which considers the people who are engaged in the industry. If for the sake of society we decided that tobacco should be prohibited, what would happen to the industry? We have enough problems

with industries which we wish to be prosperous, such as the car industry, and which are declining. Here is an industry which is prosperous but which hon. Members, for sincere motives, wish to cause to decline. They do not consider what would happen if their actions succeeded—perhaps because they do not believe they will succeed, but, as they are sincere, I must attribute to them the belief that they have considered the possibility that they will succeed.
In my constituency alone some 6,000 people are employed in one factory in the tobacco industry. That factory is the largest single employer in Nottingham, which is the tenth city in the United Kingdom. There are distributors throughout the country, and about 600,000 points of distribution are involved. There are also shareholders in the tobacco industry who, unlike shareholder banks and insurance companies, presumably cannot afford the loss of money. Possibly more than a million individuals are involved in the shareholdings of tobacco companies. If my hon. Friend succeeded in his aim to eliminate smoking altogether, he would eliminate the financial future of most of those people. In this day and age we cannot act in that manner.
Some of the advocates of the cessation of smoking in the United Kingdom are even worse than the worst examples of nineteenth century, laissez-faire Manchester School economists. They would simply wipe out a whole industry with no thought for the people involved in it.
If the Government or the legislature wish to wipe out or reduce cigarette consumption they should think about how to do the job properly. They should obviously consider that people whose jobs are eliminated for health reasons which become reasons of state deserve a degree of compensation. I have never heard any reference to this. Those who believe sincerely in the abolition of smoking seem to think that people who are engaged in what is considered to be a nasty occupation do not deserve compensation.

Mr. John Parker: When the State abolished the slave trade, no compensation was paid to those engaged in it.

Mr. English: My hon. Friend is not strictly accurate.

Mr. Parker: Not to those who took part in the slave trade from West Africa to the West Indies.

Mr. English: My hon. Friend now agrees that slave owners were actually compensated. He is proving my point wholly if he is comparing the tobacco industry in this country with the slave traders of the past. He illustrates perfectly the argument I was making. There are sincere people who believe that smoking is wrong and harmful, and it is their sincere feeling that those who are engaged in the industry are taking part in something nasty. By comparing my 6,000 tobacco workers with the slave owners of the nineteenth century and before, my hon. Friend is totally proving the point that behind some of the believers in good there is a feeling that anyone who opposes them is evil on a scale unimaginable.
I must end to give my hon. Friend time to withdraw his Bill as I promised I would.

3.57 p.m.

Mr. Pavitt: I shall respond to the speech by my hon. Friend the Minister and in doing so refer briefly to the debate. I say to the hon. Member for Southend, East (Sir S. McAdden) that I very much regret that while we totally agree about preventive medicine, he paid no attention to the medical evidence I gave him. When lung cancer is increasing among women at 188 per cent. and breast cancer at only 40 per cent. it is obvious which should have the higher priority.
I am grateful to the hon. Member for Ealing, Acton (Sir G. Young) for supporting the Bill as a sponsor. I respect the points of view expressed by my hon. Friends the Members for Liverpool, West Derby (Mr. Ogden) and Nottingham, West (Mr. English). They speak with a constituency interest, and do so quite effectively.
I referred to the possibility of people's lungs being like Arbroath smoked kippers, but more red herrings than any other fish have been drawn across the trail in the debate. I can assure my hon. Friends that there is no question of making the habit a social evil or pariahs of those who indulge in it. But smoking presents a very difficult psychological problem of addiction for the community. It would cost the National Health Service a large amount to deal with my hon. Friend's nervous breakdown were he to give up smoking, but I am not trying to convince him or anyone else over the age of 25 to do so.
The employment considerations have been taken into account and the trade unions representing the tobacco workers in the Nottingham area have been prepared to discuss these matters. Already the tobacco industry is diversifying its investment. Imperial Tobacco has more than 54 per cent. of its investment in interests other than tobacco.
In view of the assurance by my hon. Friend the Minister that negotiations are to continue, and since I would not want to inhibit them, I beg to ask leave to withdraw the motion and the Bill.

Motion, by leave, withdrawn.

Bill withdrawn.

DETONATORS BILL

Order for Second Reading read.

3.59 p.m.

Mr. Carol Mather: I beg to move, That the Bill be now read a Second time.
I commend the Bill to the House.

The Minister of State, Home Office (Mr. Brynmor John): I acknowledge that the hon. Gentleman—

It being Four o'clock, the debate stood adjourned.

Debate to be resumed upon Friday next.

COMPANIES BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 18th June.

CRUELTY TO ANIMALS ACT 1876 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

SHOPS (HOLIDAY RESORTS— SUNDAY TRADING) BILL [Lords]

Order for Second Reading read.

Hon. Members: Object.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine): What day? No instruction.

PARLIAMENTARY COMMISSIONER (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

HOMES BILL

Order read for resuming adjourned debate on Second Reading [20th February].

Hon. Members: Object.

Debate further adjourned till Friday next.

NATIONAL HEALTH SERVICE (SCHOOL HEALTH SERVICE) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

EUROPEAN PATENT CONVENTION

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Thomas Cox.]

4.2 p.m.

Mr. Michael Neubert: The week began on Monday with Oral Questions to the new Secretary of Sate for Trade, including one seeking ratification of the European Patent Convention. The weeks ends with my Adjournment debate this afternoon on the same subject, thus aptly providing two matching book ends for the week's business.
The neatness of the arrangement will appeal to those, including yourself, Mr. Deputy Speaker, who have an aesthetic appreciation of the form and structure of our parliamentary life. However, the reason for this sequence of events is far less satisfactory, since it appears that the cause of early ratification of the European Patent Convention is no further advanced today than it was on Monday or, indeed, at any time in the six months that have elapsed since the omission of all mention of it from the Queen's Speech last November. This delay is causing increasing concern.
It seems that in matters of patent law, delay tends in recent times to have been the most characteristic feature. In 1967 the Government of the day—I stress that dilatoriness does not lie with this Government alone—set up the Banks Committee to review the patent system and the prevailing statute, the Patent Act 1949. That committee, under its chairman, Sir Maurice Banks, reported in July 1970. The meritorius Sir Maurice was knighted in 1971, but in the six years which have passed from the date of his report being lodged with the Government, there has been no further end product as a reward for his public endeavours.
Similarly, the opportunity was lost of the location of the headquarters of the European Patent Convention being secured for the United Kingdom in the inaction of five months from October 1971 to May 1972 by the time our tardy bid was made. Eventually it went to Munich.
Likewise, the conference on and the signing of the Community Patent Convention, as opposed to the European Patent Convention, was delayed for 18 months from May 1974 to December of last year at the request of the United Kingdom. It is in an endeavour to ensure that there should be no further delay in this matter that I take the opportunity of raising it this afternoon.
First, let us be in no doubt about the strength of the support for this proposal. It is supported, as will be known, by the Chartered Institute of Patent Agents, the Confederation of British Industry, the International Chamber of Commerce, the Association of British Chambers of Commerce, the Trade Marks Patents and Designs Federation and, so far as is known, by the Department of Trade under successive Ministers. But, despite that support, the history of this proposal is very disappointing.
Let us consider the Government's record. They produced a White Paper entitled "Patent Law Reform" in April 1975, Cmnd. 6000, in which they accepted most of the main recommendations of the Banks Committee. They committed themselves to introducing legislation during the next parliamentary Session—namely, the present Session. But when the Queen's Speech was made last autumn there was no mention of this proposal, although it could be covered under the head of other matters.
In view of the anxiety among patent agents and others outside the House, Questions were asked on 15th December 1975. The Under-Secretary of State for Trade, the hon. Member for Hackney, Central (Mr. Davis), whose attendance I welcome here this afternoon, replied:
I am aware that ratification by the United Kingdom of the European Patent Convention at the end of 1976 is important for British interests, and my right hon. Friend intends to introduce a comparatively short Bill to enable this as soon as circumstances permit. Further legislation will be necessary to enact the White Paper proposals for patent law reform

and to permit ratification of the Patent Cooperation Treaty and of the Community Patent Convention which is being signed in Luxembourg today. Due to pressure of parliamentary business it will not be possible to introduce this more comprehensive legislation during the present Session."—[Official Report, 15th December 1975; Vol. 902, c. 944–5.]
That was clearly a setback, but at least it offered the promise of a small measure to achieve the specific ratification of the European Patent Convention.
On Monday 26th April the Secretary of State for Trade gave a no more encouraging reply when he said:
I agree that it is important for the United Kingdom to ratify the European Patent Convention before the end of this year. For this purpose legislation is required and I will introduce this as soon as circumstances permit.
In answer to the following supplementary question the right hon. Gentleman said:
I recognise that it is an important question. I shall do what I can to introduce legislation at the earliest possible time so that we can ratify it before any serious disadvantage is caused to this country."—[Official Report, 26th April 1976; Vol. 910, c. 18–19.]
It is important to realise that ratification of the convention does not depend upon us alone. The proposal is that the convention should come into effect by the beginning of next year provided that by the end of 1976 at least six countries should have ratified the convention which had an aggregate of 180,000 applications filed during the course of 1970. Germany which has about 60,000 applications to its account, has already begun to take a measure through the Bundestag. Similarly, France is on the way. France accounted for about 60,000 applications in 1970.
It will be seen that already those two countries alone would muster two-thirds of the necessary support. When we realise that countries such as Holland and Italy, where merely a simple resolution is required, are also moving towards ratification, it is clear—perhaps on this occasion I might be allowed to say that it is patently obvious—that the Government are in a race and are stuck at the starting gate.
The disadvantages which will flow from any failure to meet the deadline at the end of the year are very serious for the patent agents' interests, and those interests are national. On Monday we welcomed last month's trading figures.


The visible trade deficit of only £19 million was offset by a surplus on invisible earnings of £120 million, thus creating a surplus overall of £101 million.
Among those invisible earnings there will undoubtedly have been patent agents' fees from overseas clients. It is estimated that in the course of the average year £10 million in foreign currency earnings are brought into this country in this way. One of the first and most important results of failing to ratify the convention would be that we should lose that business, particularly that from Japan and the United States. Patent agents naturally are concerned with the situation.
Furthermore, patent agents in industrial companies would have to lodge their applications with agents locally—for example, in Germany—and there would then have to be a transfer of currency from this country to pay the German patent agents to present applications before the European Patent Office. There would then be the possibility that senior British officials would lose the opportunity of securing positions in the European Patent Convention.
Finally, there would be the loss of leadership and influence generally in patent matters in the United Kingdom. That is the great feeling of apprehension on the part of anybody concerned with the cause of Europe, particularly when we appreciate that it is estimated that if we become parties to the convention, fully ratified, 60 to 80 per cent. of the business and applications made would be conducted in the English language.
For all these reasons, it is important that the Government should introduce the necessary legislation to enable these matters to go ahead, and in particular to enable our patent agents to secure the necessary business in support of our foreign earnings.
Up to this point in my remarks I have been relatively mild-mannered and, if my remarks take on more pungent flavour, it must be attributed to my personal responsibility and not to anything felt by supporters of these proposals outside the House.
We are well aware that the problem faced by the Government is the finding of legislative time for the short Bill that

has been promised. When we bear in mind that 49 Bills have already been introduced, which are being considered in 10 Standing Committees, it is not only Opposition Members but hon. Members in all parts of the House who are beginning to think that that number could be cut by half.
Surely where measures of relative brevity and simplicity are awaiting introduction and enactment—measures that would bring certain benefits, as confirmed by the Government's White Paper—it would be wrong to give priority to other more doctrinaire Socialistic measures which are not sufficiently supported by a mandate in the country, having been brought forward by a minority Government. These matters can be covered by a relatively inoffensive measure. My fear is that if the measure is further delayed, it may be embraced within a much wider measure which might not of itself be so uncontroversial.
In support of this view, I quote the opinion of the Under-Secretary of State on 15th December 1975, stated in reply to a supplementary question. The Minister said:
The Banks Committee put forward a variety of propositions which we would seek to enact in a comprehensive Bill. This would have included a number of cotroversial aspects."—[Official Report, 15th December 1975; Vol. 902, c. 945.]
The specific and narrow issue of the ratification of the European Patent Convention is, by general acknowledgement, not controversial. There has been an Early-Day Motion on the Order Paper on this matter for some time. There is a certain imbalance in the number of signatures on the motion, but I would not call it anything but bipartisan. There is no general controversy about this proposal, except for those for whom the very mention of the word "Europe" is enough to bring about a chronic bout of anathema.
I turn to a less contentious note and leave the last words to the Comptroller-General of Patent Designs and Trade Marks. In presenting the 93rd Report of his organisation he said in April 1975:
If the United Kingdom is to be a party to the European Patent Convention from the setting up of the European Patent Office, early legislation to that end will be necessary".


The Government should take note and act fast. The Minister should bring in a short, 10-clause Bill this Session to ratify the European Patent Convention. If he does so, he will contribute significantly to the nation's prosperity.

4.15 p.m.

The Under-Secretary of State for Trade (Mr. Clinton Davis): I shall ignore the more bellicose and less relevant part of the speech by the hon. Member for Rom-ford (Mr. Neubert). It was otherwise helpful. On behalf of the Government I fully accept the case that has been made for the early ratification of the European Patent Convention by the United Kingdom. I do not hide my disappointment that we have not yet been able to find legislative time for it.
We recognise that, without British participation, it might not be possible to adhere to the internationally agreed timetable for the opening of the European Patent Office, although the preparatory work for this is now at an advanced stage. Even more undesirable would be the situation that would arise if the convention came into force before we ourselves had ratified it. The problems that either eventuality would create can be foreseen, and during the past few months we have been constantly reminded of these by bodies representative of industry and the patent profession, as well as by many individuals having an interest in patents.
All this we well understand. But I think that the convention, important though it is, should not be looked at in isolation, but should be seen in the context of all the developments in patents that have been taking place in recent years.
The past 10 years or so have been remarkable for their activity in international patent co-operation. The pressures behind this have been twofold: from the many industries who trade internationally in one way or another, and who would obviously benefit if the principal national patent systems could be harmonised so that patentees enjoyed much the same rights wherever they were obtained, and could obtain those rights without the necessity, as at present, of proceeding country by country, and from national patent offices burdened with the administrative problems created by the

enormous growth in patent activity in the post-war years.
The full results of this activity are now emerging. First, there is the Council of Europe, or Strasbourg, Convention, of 1963 providing for harmonisation of basic patent law. Then there is the Patent Cooperation Treaty of 1970, a potentially world-wide system of work-sharing, promising substantial benefits to patentees and national patent offices, and providing for a degree of harmonisation amongst national patent laws. Next, there is the subject of today's debate—the European Patent Convention of 1973—which will centralise much European patent work, both from EEC and non-EEC States, in the European Patent Office in Munich, and also ensure that patents granted by the European Office will have much the same legal effect in all the contracting States. Finally, there is the Community Patent Convention signed as recently as December of last year, which provides for a single supranational patent, giving the same rights in all Community States. All these international instruments are, moreover, interlinked and should eventually give inventors and innovators the opportunity of obtaining uniform patent protection over much of the world much more easily than is possible today.
But these important international arrangements must all be grafted on to national patent systems, since these do not cease to exist under the new arrangements but will continue to serve those whose interest in obtaining protection is confined to their own shores, as well as providing the legal framework for those patents obtained on one or other of the international routes. So the task of modernising our patent system will not be completed merely by ratification of the treaties to which I have referred, but must be complemented by a thorough overhaul of our domestic law and procedures, following the proposals in the White and Green Papers published in April of last year, and which stemmed from the report of the Banks Committee, published in 1970. Only then shall we have reached the goal of a patent system able to protect the results of industrial research and development through the grant of strong patents, both here and abroad.
Of course, the new procedures will inevitably have their complexities. They


exist today. But we expect them to be better attuned to the needs not only of those who obtain patents, but also of those, less commonly considered in discussions on patents, who wish to challenge the existence of patent rights. The final objective must, therefore, be a British patent system reformed to meet all the national and international objectives that I have outlined. It scarcely needs underlining that it would be preferable if all the changes in our law necessary to achieve those objectives could be made in comprehensive patents legislation.
Piecemeal legislation obviously has its dangers. It would be expensive in legislative time. It is, generally speaking, less desirable to do it in this way. It would create the possibility of patents effective in the United Kingdom being granted to two different standards, one in London and the other in the European office in Munich. There could be uncertainty about the future form of the British patent system if there were that approach.
It remains our hope, therefore, that time can be found early next Session for a Bill that will deal with all the changes that will be needed in the patent system during the next few years. It is true that, as the hon. Gentleman pointed out, the changes in law that will permit the United Kingdom to ratify the European Patent Convention could be made in a comparatively short Bill. Indeed, we have been urged both in this House and in the heavy correspondence we have received on the subject from industry and individuals to introduce such a Bill this Session. That is what the hon. Gentleman has invited the Government to do. It would ensure our early ratification of the convention.
I must tell the hon. Gentleman, though he must have gleaned the information from the answers he read out—it is always possible to read between the lines even in parliamentary answers—that we should very much have liked to see this happen this Session, but the demands on parliamentary time have been very heavy. I think that the hon. Gentleman will agree that even if we were to leave out the more contentious issues before the House there are difficulties even with a short Bill.
Ten clauses do not seem very much but they can be very complex in what is undoubtedly a most complex field of the law. Moreover, there would be likely to be four schedules. The Bill would have to graft on to the Patents Act 1949 the obligations imposed by the European Patent Convention as regards patents. This would involve giving effect in the United Kingdom to a European patent as if it were a United Kingdom patent founded on an application filed in the United Kingdom Patent Office.
Secondly, arising from that in a way, the proposition would be subject to a number of important qualifications which would have to be spelt out in the Bill—for example, the validity criteria for a European patent are to be different from those of the weaker United Kingdom patent.
Thirdly, it would be necessary to give effect in the United Kingdom to a European application and to provide protection rights for the applicant as from a date much earlier than is the case for a United Kingdom application.
Fourthly, the powers of the Comptroller must be widened to permit the Patent Office to undertake certain functions relating to the European system, such as agency work.
Fifthly, the Bill would have to provide for European applications by United Kingdom residents relating to defence matters for atomic energy, and to enable conversion of those and of European applications in respect of other matters into United Kingdom applications on certain conditions.
Sixthly, the rules in the 1949 Act concerning agents would have to be amended.
All those are points of considerable difficulty and complexity, since there is a remarkable difference between the structure and terms of the 1949 Act and the European Patent Convention. Therefore, it is not as simple as the hon. Gentleman might have given the impression.
The difficulties could no doubt be overcome if we had a little more time, but the demands upon parliamentary counsel are considerable, and when we consider legislation of this kind, particularly in a highly technical area, we must get it right. If we were to hasten into something and have legislation ultimately


found to fall short of the standard required, I am not sure that we should have advanced the cause all that much.
But the hon. Gentleman may have this assurance from me. As we have said repeatedly over some months, we shall do our best to ensure that the British interests in all the matters to which he alluded are not sacrificed by delay. We shall do our best to get the legislation on the statute book at the earliest possible moment. We may have to fight a little for that, but we shall fight.
As the hon. Gentleman conceded, the desire of the British Government is to protect the industry and the profession as much as possible. I assure him that in our performance we shall do our utmost not to be found wanting and I hope that the industry and the profession will derive some satisfaction from these words of mine, although I have given no specific undertakings about time.

Question put and agreed.

Adjourned accordingly at twenty-five minutes past Four o'clock.